PREFACE:

As good cause appears and as justice may require, the Court may waive the application of any rule.

Upon the violation of any rule of Court, the Court may take such action as justice may require. Such action may include, without limitation, the imposition of monetary sanctions against either counsel or a Party, which may include fines to be paid to the Court, and reasonable attorney's fees and costs to be paid to the opposing party.

RULE 1:  DEFINITIONS

 

            The following defined terms were developed to ensure clarity and consistency and are capitalized when used in a rule.

 

Administrator:  The word Administrator includes every Person to whom an administration of an estate has been granted, including administrators and executors.

 

Answer:  A written response to a Petition.  However, an Answer is not the only acceptable written response to a Petition, other examples would be a Motion to dismiss or an objection.

 

Appearance (General):  A written document filed by, or on behalf of a Party, pursuant to Rule 14, submitting to the jurisdiction of the Court.

 

Appearance (Special): An Appearance filed with the Court for the sole purpose of determining jurisdiction.

 

Attorney: Any person (a) admitted to practice law in New Hampshire, (b) allowed to appear in New Hampshire courts under pro hac vice (Rule 19) status, or (c) authorized by another under a power of attorney, usually referred to as an attorney-in-fact.

 

Beneficially Interested:  As defined in RSA 550:12.

 

Cause: Any matter filed with the Court which requires the filing of an Appearance.

 

Court: Probate Court

 

Fiduciary: The word fiduciary includes every Person appointed to act as an administrator, executor, guardian, conservator, or trustee.

 

Motion: A written Pleading or oral request to the Court requesting the Court to take particular action.

 

Party:  Any Person whose name is designated on the record to a proceeding as a Petitioner, Respondent, guardian ad litem or any other person or legal entity who has filed an Appearance, also referred to as a party appearing of record.

 

Person: A natural person or any legal entity.

 

Petition: A written Pleading that initiates a proceeding.

 

Petitioner: A Party who initiates a proceeding.

 

Pleading: A Petition, Motion, objection, Answer, account or inventory filed with the Court requesting action by the Court.

 

Power of Attorney: An instrument signed by a Party, witnessed and acknowledged before a Justice of the Peace or Notary Public, authorizing an individual to act on behalf of the Party to do a particular act, appear in a particular matter, or for the general transaction of business.

 

Proof of Assets:  Documentation that demonstrates that a ward has sole ownership of the assets.  An example of documentation for savings, checking, certificates of deposit, and/or any other accounts, may be a photocopy of the current statement that shows the balance and the complete account title and ownership information.

 

Pro Se Party: A Party who does not retain an Attorney but appears  personally.

 

Register: Register of Probate

 

Respondent: A Party who responds to a Petition.

 

Return Day: The date upon which Petitions are returnable to the Court.  It is usually the first Tuesday of any month unless otherwise ordered by the Court.  The Return Day is selected to create the time limits people are given in which to respond.

 

Tangible Personal Property: Property of material substance such as, goods, wares and merchandise.

 

 

Rev.  1 - 03/29/1996                               Rev.  8 - 11/19/1996

Rev.  2 - 04/20/1996                               Rev.  9 - 12/10/1996

Rev.  3 - 05/17/1996                               Rev. 10 - 01/06/1997

Rev.  4 - 06/14/1996                               Rev. 11 - 03/04/1997

Rev.  5 - 07/12/1996                               Rev. 12 - 03/25/1997

Rev.  6 - 10/07/1996                               Rev. 13 - 11/05/1998

Rev.  7 - 10/30/1996                               Rev. 14 - 05/15/2000

                                                                FINAL   - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 1 addresses writs.  As this rule is not applicable to the Probate Court, the Committee decided to use proposed Probate Court Rule 1 for definitions.

2.         The Committee developed definitions to ensure clarity and consistency in the use of certain terms.  Defined terms are capitalized when used in a rule.

3.         The Committee felt it was important to note that a General Appearance submits a Party to the jurisdiction of the Court, while a Special Appearance is submitted to determine the jurisdiction of the Court.

4.         The Committee did not elaborate on the powers of an Attorney-in-Fact since the definition of Power of Attorney is provided.

5.         In defining Party, the Committee considered several persons who might be a Party, but decided specifically to not include Beneficially Interested persons and intervenors unless an Appearance has been filed by that Person or entity.

6.         The Committee included the term attorney-in-fact as part of the definition of Attorney to limit the chain of references.

7.         The Committee included the term executor as part of the definition of Administrator to limit the chain of references.

 

 

 

 

RULE 2:  PETITIONS, APPEARANCES - Addresses

 

            Petitions shall not be accepted for entry unless the mailing address and actual street address of the party filing the Petition appears thereon, and no Appearance shall be filed unless it contains the mailing address and actual street address of each Party included in said Appearance.  For good cause shown, any Petition or Appearance rejected for non-compliance with this rule may, upon Motion and compliance, be admitted for filing.   

            All changes of either mailing address or actual street address shall be filed with the Register.  Whenever notice to a Party is required, notice to the last mailing address on file shall be deemed notice to, and binding on, the Party.

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

Rev. 3 - 05/17/1996

Rev. 4 - 12/02/1997

Rev. 5 - 03/11/1998

Rev. 6 - 03/25/1998

Rev. 7 - 04/22/1998

Rev. 8 - 06/29/1999

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 2, with modifications, in conjunction with paragraph five of current Probate Court Rule 3, as proposed Probate Court Rule 2.

2.         The remaining paragraphs of current Probate Court Rule 3 contain concepts more closely related to other Superior Court rules and are thus addressed in the context of those rules.  Paragraph one is addressed by Superior Court Rule 6; paragraph two and three by Superior Court Rule 3; paragraph four by Superior Court Rule 5; and paragraph six by Superior Court Rule 21. 

3.         Proposed Probate Court Rule 2 addresses only the commencement or initiation of proceedings in the Probate Court.  In the past, the Probate Court has inconsistently used the word petition.  Only those pleadings that initiate a proceeding will be referred to as a “Petition.”  All other pleadings will be referred to in the generic as a “motion.”  Given this, all references to motions or other pleadings have been omitted from proposed Probate Court Rule 2.

4.         The Committee decided to separate the fourth paragraph of current Probate Court Rule 3 into two paragraphs, since there is addressed therein, two distinct concepts; change of address and notice.

5.         Proposed Probate Court Rule 2 is not a substantive provision detailing who must receive notice or the type of notice to be given.  The failure of proposed Probate Court Rule 2 to address persons other than parties should in no way be taken to indicate that persons other than parties are not entitled to notice.  The substantive provisions of who is entitled to notice and when are addressed in subsequent rules.

6.         The Committee replaced the title "Entry of Actions" with “Petitions, Appearances" and added the heading "Addresses,” to clarify the topic of the rule.

7.         The Committee discussed the usage of the words "shall" and "will" and decided that the word "shall" would be used in instances calling for a directive.

8.         Throughout the rules, the Committee replaced all references to “his,” “him,” and “he” with the appropriate gender neutral language.

 

 

 

 

RULE 3:  PETITIONS  - Entry

 

            No Petition shall be presented to, or heard by, the Court until filed with the Register’s office, the applicable entry fee paid, and the petition is entered upon the docket.

            For the purpose of compliance with any time deadlines or statutes of limitation, the terms "filing" and "entry" shall have the same meaning and shall be used interchangeably.  Whenever any document is received by the Court and time-stamped as received, or the document is entered in the Court's case management system, the earlier of the two shall be accepted as filing or entry date.

 

 

Rev.  1 - 03/29/1996

Rev.  2 - 04/20/1996

Rev.  3 - 05/17/1996

Rev.  4 - 06/14/1996

Rev.  5 - 12/02/1997

Rev.  6 - 03/11/1998

Rev.  7 - 03/25/1998

Rev.  8 - 04/22/1998

Rev.  9 - 06/29/1999

Rev. 10 - 04/20/2000

FINAL   - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 3, with modifications, in conjunction with paragraph two of current Probate Court Rule 3, with modifications, as proposed Probate Court Rule 2.          The Committee added the second paragraph of proposed Probate Court Rule 3 to incorporate the proposed revision to Superior Court Rule 3 submitted 6/97 to the Supreme Court Advisory Committee on Rules, adopted 10/97, sent to public hearing 6/98, sent for comments 8/99.

3.         The remaining paragraphs of current Probate Court Rule 3 contain concepts more closely related to other Superior Court rules and are thus addressed in the context of those rules.  Paragraph one is addressed by Superior Court Rule 6; paragraph four by Superior Court Rule 5; paragraph five by Superior Court Rule 2; and paragraph six by Superior Court Rule 21.  

4.         The Committee’s intent is that proposed Probate Court Rule 3 addresses only Petitions initiating a proceeding.  As such, there is no need to address timing and return dates in this rule.  The concept of return dates is associated with responsive pleadings in the Probate Court system.  Return dates are therefore addressed in subsequent rules which govern the filing of those responsive pleadings.

5.         The word "applicable" in paragraph 1 includes indigency situations.

6.         Given the intent that this rule addresses only Petitions initiating a proceeding, all references to motions or other pleadings were stricken.

7.         The Committee replaced "SUSTAIN data base" with "the Court's case management system."

8.         The Committee replaced the title “Entry of Actions” with "Petitions" and added the heading "Entry," to clarify the topic of the rule.

 

 

 

 

RULE 4:  PETITIONS, MOTIONS, OR PLEADINGS – Approved Forms, Form Reproduction

 

            No Petition, Motion, objection, or other Pleading, which is contained in a letter shall be accepted by the Register, as such, or acted on by the Court.  Approved forms shall be furnished by the Register and must be used in all proceedings to which they are applicable.  In all inventories and accounts where there is not sufficient space in the original form, additions or riders may be attached on paper of the same size.  If no approved form is specifically applicable, the Party shall then file a Petition or Motion in such form as complies with the Rules of this Court. 

            Practitioners may produce form reproductions for use in the Courts that are either computer generated replicas or photocopies of forms furnished by the Registers.  Form reproductions are documents containing the identical wording, in the identical format, and pagination as in the original, but font size or style may be different from the font size or style of the original court furnished form.  Computer generated replicas or photocopies of multi-paged probate forms may be single-sided.

            All Courts shall accept form reproductions of approved forms.  All Courts shall consider that the Party who signs and/or files the form reproduction has agreed that the document is a reproduction of the form of the same import furnished by the Register.  The Party who signs and/or files the form reproduction shall be held accountable for its form and content.  Discrepancies between a form reproduction and a court-furnished original may subject the Party who signs/or files the reproduction to court-imposed sanctions or penalties, including removal as Fiduciary. 

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

Rev. 3 - 05/17/1996

Rev. 4 - 09/22/1998

Rev. 5 - 12/02/1998

Rev. 6 - 06/29/1999

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee modified and adopted Superior Court Rule 4, in conjunction with current Probate Court Rule 22, Probate Court Administrative Order 1998-04, and Probate Court Procedure Bulletin 1996-11, as proposed Probate Court Rule 4.

2.         The Committee omitted the reference to "the all purpose petition form" commonly referred to as form 77 from current Probate Court Rule 22 in accordance with Probate Court Procedure Bulletin 1996-11.

3.         Any references to “forms or blanks” was replaced with “forms.”  The word “blanks” appears to derive from RSA 548:8's requirement that forms or blanks be provided.  While in historical context, “blanks” may have had some significance, it has none today and has therefore been eliminated.

4.         The "Rules of this Court" referred to in the first paragraph are proposed Probate Court Rules 117-121.

5.         The Committee replaced the title "Entry of Actions" with "Petitions, Motions, and Pleadings" and added the heading "Approved Forms, Form Reproduction," to clarify the topic of the rule.

 

 

 

 

RULE 5:  PETITIONS, MOTIONS, OR PLEADINGS - Failure to Comply with Rules or Statutes

 

            The Register may refuse to accept any Petition, Motion or Pleading that the Register determines does not comply with these rules or statutory procedure.  In the event an objection is made to such determination, a written Motion may be made to the Court to rule on such determination.

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

Rev. 3 - 06/14/1996

Rev. 4 - 12/02/1997

Rev. 5 - 03/11/1998

Rev. 6 - 03/25/1998

Rev. 7 - 04/22/1998

Rev. 8 - 06/29/1999

FINAL  - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 5, with modifications, in conjunction with paragraph four of current Probate Court Rule 3, as proposed Probate Court Rule 5.

2.         The remaining paragraphs of current Probate Court Rule 3 contain concepts more closely related to other Superior Court rules and are thus addressed in the context of those rules.  Paragraph one is addressed by Superior Court Rule 6; paragraph two by Superior Court Rule 3; paragraph three by Superior Court Rule 3; paragraph five by Superior Court Rule 2; and paragraph six by Superior Court Rule 21.

3.         The Committee replaced "Clerk" with "Register."

4.         The Committee replaced the title "Entry of Actions" with "Petitions, Motions or Pleadings" and added the heading “Failure to Comply with Rules or Statutes," to clarify the topic of the rule.

 

 

 

 

RULE 6:  PETITIONS, MOTIONS, OR PLEADINGS - Addressing the Court

 

            No Attorney or Party shall directly address himself or herself by Petition, Motion or Pleading, to any Judge of Probate, but shall file such Petition, Motion or Pleading with the appropriate Register.

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

Rev. 3 - 06/14/1996

Rev. 4 - 03/11/1998

Rev. 5 - 03/25/1998

Rev. 6 - 04/22/1998

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 6, with modifications, in conjunction with paragraph one of current Probate Court Rule 3, as proposed Probate Court Rule 6.

2.         The remaining paragraphs of current Probate Court Rule 3 contain concepts more closely related to other Superior Court rules and are thus addressed in the context of those rules.  Paragraph two is addressed by Superior Court Rule 3; paragraph three by Superior Court Rule 5; paragraph four by Superior Court Rule 2; and paragraph five by Superior Court Rule 21.

3.         The Committee replaced "except upon proper written petition, motion or pleading" found in current Probate Court Rule 3 with "but shall file such Petition, Motion, or Pleading with the appropriate Register."

4.         The Committee discussed, at great length, that current Probate Court Rule 3 and Superior Court Rule 6 seem to address different issues.  Superior Court Rule 6 addresses attorneys and parties introducing pleadings during the course of a hearing when those pleadings have not first been passed through the Clerk, so that they might become part of the file.  Probate Court Rule 3 on the other hand, seems to direct itself to ex-parte communications.  Ex-parte communications will be addressed in a subsequent rule. 

5.         The Committee replaced “Clerk” with “Register.”

6.         The Committee replaced “other person” found in current Probate Court Rule 3 with “Party” as it was beyond the Committee’s contemplation as to who, not an attorney or a party, would be bringing forth such pleadings.

7.         The Committee replaced the title "Entry of Actions" with "Petitions, Motions or Pleadings" and added the heading “Addressing the Court," to clarify the topic of the rule.

 

 

 

 

RULE 7:  [Reserved for Future Use]

 

 

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 7 was repealed in 1982.  The Committee decided to reserve proposed Probate Court Rule 7 for future use.

 

 

 

 

RULE 8:  [Reserved for Future Use]

 

 

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 8 addresses the right to a jury trial.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 8 for future use.

 

 

 

 

RULE 9:  [Reserved for Future Use]

 

 

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 9 addresses a disabled juror.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 9 for future use.

 

 

 

 

RULE 10:  DOCKETS

 

            The Register shall enter upon the docket, at the time of filing the Petition, the names and addresses of all Parties involved in such Petition. 

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 10, with modifications, as proposed Probate Court Rule 10.  The Committee decided that the creation of a Probate Court Rule to address the subject matter contained in Superior Court Rule 10 was necessary.

2.         The Committee replaced “Clerk” with “Register.”

3.         The Committee added “and addresses” after names.

 

 

 

 

RULE 11:  DOCKETS - Order of Presentation

 

            Petitions, Motions and other Pleadings shall be presented to the Court in the order in which they are filed, unless otherwise determined by the Court.

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

Rev. 3 - 05/17/1996

Rev. 4 - 06/14/1996

FINAL - 04/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 11, with modifications, as proposed Probate Court Rule 11.  The Committee decided that the creation of a Probate Court Rule to address the subject matter contained in Superior Court Rule 11 was necessary.

2.         The Committee replaced “cases” with “Petitions, Motions and other Pleadings” for consistency.

3.         To reflect the fact that not all matters are trials in Probate Court, the Committee replaced the phrase “tried in their order upon the docket” with “presented to the Court in the order in which they are filed.”

4.         The Committee replaced “ordered” in “ordered by the Court” with “determined.”  Some members of the Committee felt that “ordered” may be interpreted as requiring an actual Court order.  Given the reality of the Register reordering case presentation based on a multiplicity of factors, (e.g., request of parties, nature of the claim, whether any of the affected persons are minors, etc.), the Committee wanted it to be clear that no Court order is required.  “Directed” was suggested as an alternative, but was vetoed for the same reason.  “Scheduled” was a compromise suggestion, but after lengthy debate the Committee ultimately decided on “determined.” 

5.         The Committee debated whether the rule should read "as determined by the Register," as it is really the Register who reorders the docket.  The Committee ultimately decided to leave "the Court," since whether officially done or not, all actions of the Register are the actions of, and are subject to review and approval by, the Court. 

6.         The words “otherwise determined” address the fact that due to discovery, nature of the pleading, request of counsel, etc., cases are often not addressed in their order of filing.

7.         The Committee added the heading “Order of Presentation,” to clarify the topic of the rule.

 

 

 

 

RULE 12:  COMPUTATION AND EXTENSION OF TIME

 

            In computing any period of time prescribed or allowed by these rules, by order of the Court, or by applicable law, the day of the act, event, or default after which the designated period of time begins to run shall not be included.  The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday as specified in RSA 288, as amended, or other day the Court is not open, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, legal holiday as specified in RSA 288, as amended, or other day the Court is not open.

            Motions to enlarge the time prescribed by these rules or by Court order for doing any act are not favored.

 

 

Rev. 1 - 03/29/1996

Rev. 2 - 04/20/1996

Rev. 3 - 05/17/1996

Rev. 4 - 06/14/1996

Rev. 5 - 09/30/1998

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 12, with modifications, in conjunction with current Probate Court Rule 1A, with modifications, as proposed Probate Court Rule 12.

2.         The current Probate Court Rule 1A reads, “[i]n computing any period prescribed...,” while the Superior Court Rule reads, “[i]n computing any period of time prescribed.”  The Committee added the additional words “of time” to the proposed Probate Court Rule 12 for consistency.

3.         The Committee added the phrase, “or other day the Court is not open” to address the issue of the Court closing for holidays not enumerated in RSA 288, inclement weather, or other reasons not currently foreseen. 

4.         The Committee discussed Probate Court Procedure Bulletin 1996-03.  The Committee concluded that the subject matter of the Bulletin, the effective date of court orders, was not implicated or impacted by the proposed Probate Court 12, and as such was not incorporated or in anyway addressed in the proposed Probate Court Rule 12.

 

 

 

 

RULE 13:  TRIAL ASSIGNMENT CALENDAR

 

            A Party, Petitioner or Respondent, anytime subsequent to, or contemporaneous with, the filing of an Answer to a Petition, may by Motion request that the Court place the contested matter on the trial calendar.  Such Motion shall be a representation to the Court by the Party or the Attorney for the Party that the Party is ready for trial, that there is no known reason why the opposing Party is not ready for trial, that settlement negotiations have been exhausted and that a trial is probably certain.  Rule 59 shall be strictly enforced as to all such Motions.

 

 

Rev. 1 - 04/20/1996

Rev. 2 - 05/17/1996

Rev. 3 - 06/14/1996

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 13, with modifications, as proposed Probate Court Rule 13.  The Committee decided that the creation of a Probate Court Rule to address the subject matter contained in Superior Court Rule 13 was necessary.

2.         The Committee replaced “subsequent to sixty days” with “anytime subsequent to, or contemporaneous with, the filing of an answer."  Such change is reflective of the reality that such Motions may be filed with the Answer. 

3.         The Committee debated, at length, the breadth of this Rule and whether it applies to all contested matters.  The Committee decided that this rule applies only to those matters initiated by a Petition and not Inventories, Accounts or other Motions. 

4.         The Committee unanimously agreed that this Rule is not intended to affect any provision of these Rules regarding pre-trial procedure.

5.         The Committee replaced “plaintiff” and “defendant” with “Petitioner” and “Respondent.”

6.         The Committee replaced “suit” with “contested matter.”

 

 

 

 

RULE 14:  APPEARANCES - General and Special

 

            Any Party may appear Pro Se, or be represented by an Attorney.  Attorneys and Pro Se Parties shall enter an Appearance Form before filing Pleadings or personally appearing before the Court.  An Attorney-in-Fact shall attach a copy of the Power of Attorney to the Appearance Form.  No Appearance Form shall be required to be filed by the Petitioner, or if represented, by the Petitioner's Attorney or by a guardian ad litem.

            The Appearance Form shall identify the Attorney, or Pro Se Party's name, address, the matter in which the Person appears and the name and address of the Party or Parties for whom the Person appears.

            Copies of the Appearance Form shall be forwarded to all Parties, or if represented, to their Attorneys by the Party so appearing.  A statement of compliance shall accompany all Appearance Forms.

            The filing of an Appearance shall not constitute a general objection or denial.  Any objections or denials must be raised in a separate Pleading.  A Special Appearance shall be deemed a General Appearance thirty (30) days after the Return Day of the action, unless a motion to dismiss on jurisdictional grounds is filed within that time.

 

 

Rev.  1 - 04/20/1996

Rev.  2 - 05/17/1996

Rev.  3 - 06/14/1996

Rev.  4 - 07/12/1996

Rev.  5 - 08/16/1996

Rev.  6 - 11/19/1996

Rev.  7 - 12/10/1996

Rev.  8 - 01/06/1997

Rev.  9 - 12/02/1997

Rev. 10 - 03/25/1998

Rev. 11 - 04/22/1998

Rev. 12 - 05/27/1998

Rev. 13 - 06/17/1998

Rev. 14 - 09/30/1998

Rev. 15 - 07/14/1999

Rev. 16 - 06/28/2000

FINAL   - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 14 addresses appearances in the Superior Court.  The Committee adopted the first paragraph, the first sentence of the third paragraph, and the fourth paragraph of current Probate Court Rule 4, as proposed Probate Court Rule 14.

2.         The remaining paragraphs of current Probate Court Rule 4 contain concepts more closely related to other Superior Court rules and are thus addressed in the context of those rules.  Paragraph two, sentence one is addressed by Superior Court Rule 19; paragraph two, sentence two through four and paragraph three, sentence two by Superior Court Rule 20.

3.         The Committee replaced "before the court in person" with "Pro Se."

4.         The Committee replaced "by any citizen of good character ... of this state" with "be represented by an Attorney."

5.         The Committee reworded the second sentence of the first paragraph of current Probate Court Rule 4 which addresses the filing and contents of an Appearance Form.  The Committee added "before filing pleadings or personally appearing before the Court" in the second sentence of the first paragraph to clarify when Appearance Forms are required.  The Committee moved the contents of an Appearance Form to the second paragraph of proposed Probate Court Rule 14.

6.         The Committee added the third sentence of proposed Probate Court Rule 14 to require the filing of a copy of the written Power of Attorney for attorneys-in-fact.

7.         The Committee added the fourth sentence of the first paragraph to eliminate the requirement for Petitioners and guardian ad litems to file an appearances.

8.         The Committee broadened the requirement of forwarding Appearances to opposing Parties in a contested matter to sending Appearances to all Parties in all matters in the third paragraph of proposed Probate Court Rule 14.

9.         The Committee replaced "and certification of such shall be made to the court" with the second sentence in the third paragraph.

10.        The fourth paragraph of proposed Probate Court Rule 14 represents a substantial departure from the current Probate Court Rule 4.  In current Probate Court Rule 4, an Appearance incorporates a general objection and denial.  However, in the proposed rule an Appearance shall constitute only an Appearance.

11.        The Committee replaced "10 days" in the first sentence of the third paragraph of current Probate Court Rule 4 with "30 days" to be consistent with Superior Court Rule 14.

12.        The Committee added “on jurisdictional grounds” after "motion to dismiss," to clarify that a Special Appearance relates only to the issue of jurisdiction.

 

 

 

 

RULE 15:  EXECUTION OF PLEADINGS

 

            All Petitions shall be signed by the Petitioner, except that Petitions requesting equitable relief may be signed by the Petitioner or the Petitioner's Attorney.  All bonds, inventories and accounts shall be signed by the Fiduciary.  Motions and other Pleadings may be signed by the Party, the Party's Attorney or the attorney's associate.  Names shall be typed, stamped or printed beneath all signatures on papers to be filed or served.

            The signature of any person to a Petition, Motion, or other Pleading constitutes a certification that he or she has read the Pleading; that to the best of his or her knowledge, information and belief there is a good ground to support the Pleading; and that it is not interposed for delay.

            If a Petition, Motion, or other Pleading is not signed, it may be stricken and the action may proceed as though it had not been filed. 

 

 

Rev.  1 - 05/17/1996

Rev.  2 - 06/14/1996

Rev.  3 - 07/12/1996

Rev.  4 - 08/16/1996

Rev.  5 - 09/30/1998

Rev.  6 - 12/16/1998

Rev.  7 - 07/14/1999

Rev.  8 - 05/02/2000

Rev.  9 - 06/09/2000

Rev. 10 - 6/19/2000

FINAL   - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 15, with modifications, as proposed Probate Court Rule 15.

2.         The Committee added the first sentence of the first paragraph to be consistent with current Probate practice.

3.         The Committee added "Motion(s)" and omitted "the appearance and withdrawal of counsel" in the second sentence of the first paragraph.

4.         The Committee replaced "attorney of record or his associate or by a pro se party" with "the Party, the Party's Attorney or the attorney's associate.

5.         The Committee omitted "addresses and telephone numbers" and added "printed" in the third sentence of the first paragraph to address pre-printed forms and handwritten pleadings filed by Pro Se Parties. 

6.         The Committee omitted the last sentence of the first paragraph concerning Appearances, since Appearances are addressed in proposed Probate Court Rule 14.

7.         The phrase "any person" in paragraph two of the proposed Probate Court Rule shall refer to an Attorney, associate Attorney, or pro se Party. An Attorney-in-Fact and pro se Party are required to comply with the Rules in the same way as an attorney.

8.         The Committee replaced the word "certificate" with "certification" in paragraph two, since the attorney's signature constitutes an act of certification, rather than an actual written document.

9.         The Committee replaced "pleading" with "Petition, Motion or other Pleading" preceding "constitutes a certification" in the second paragraph and in the first sentence in the third paragraph, to emphasize that Petitions and Motions are included in proposed Probate Court Rule 15.

10.        The Committee omitted "or if signed with an intent to defeat the purpose of this rule."

11.        The Committee omitted the fourth paragraph concerning an Attorney's withdrawal, since withdrawals are addressed in proposed Probate Court Rule 20.

12.        The Committee replaced the title "Appearances, General and Special" with "Execution of Pleadings," to clarify the topic of the rule.

 

 

 

 

RULE 16:  ADDRESSING THE COURT

 

            Anyone addressing the Court or examining a witness shall stand.  No-one shall approach the bench to address the Court except by permission of the Court.

 

 

Rev. 1 - 05/17/1996

Rev. 2 - 06/14/1996

Rev. 3 - 07/12/1996

Rev. 4 - 08/16/1996

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 16, with modifications, in conjunction with the first paragraph of current Probate Court Rule 6, as proposed Probate Court Rule 16.

2.         The Committee replaced “Attorneys and Parties” with “anyone” and "they" with "no-one" for consistency.

3.         The Committee replaced "should" with "shall," since no-one may approach the bench without permission.

4.         The Committee replaced "leave" with "permission."

5.         The Committee discussed a person with a disability appearing before the Court and recognized that this rule fails to consider his/her inability to comply.  The Committee decided not to change this Rule as it is within the Court’s discretion to waive any provision of these Rules, e.g. standing.

6.         The Committee replaced the title "Attorneys" with “Addressing the Court,” to clarify the topic of the rule.

 

 

 

 

RULE 17:  [Reserved for Future Use]

 

 

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 17 addresses an attorney who must also serve as a witness in front of the jury.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 17 for future use.

 

 

 

 

RULE 18:  ATTORNEYS - Testifying

 

            No Attorney shall be compelled to testify in any Cause in which the Attorney is retained, unless the Attorney has been notified in writing, not less than thirty (30) days prior to the hearing that the Attorney will be summoned as a witness therein. 

 

 

Rev. 1 - 05/17/1996

Rev. 2 - 06/14/1996

Rev. 3 - 07/12/1996

Rev. 4 - 08/16/1996

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 18, with modifications, in conjunction with the second paragraph of current Probate Court Rule 6, as the proposed Probate Court Rule 18.

2.         The Committee considered Superior Court 18 and current Probate Court Rule 6 and decided to establish a consistent standard of time for notification.  The Committee chose thirty (30) days as a reasonable time period within the context of the Probate Court.

3.         The Committee replaced "previous to the commencement of a hearing" with "prior to the hearing," for simplicity.

4.         The Committee omitted “and unless he shall have been so summoned previous to the commencement of the trial,” as it is not applicable in the Probate Court.

5.         The Committee added “Testifying” to the heading to clarify the topic of the rule.

 

 

 

 

RULE 19:  ATTORNEYS - Appearing Pro Hac Vice

 

            An Attorney who is not a member of the Bar of this State shall not be allowed to enter an Appearance or engage in any proceeding before the Probate Court, except on Motion, which shall not ordinarily be granted unless a member of the Bar of this State is associated with the Attorney and present before the Court.

 

 

Rev. 1 - 05/17/1996

Rev. 2 - 06/14/1996

Rev. 3 - 07/12/1996

Rev. 4 - 08/16/1996

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 19, with modifications, in conjunction with paragraph two of current Probate Court Rule 4, with modifications, as proposed Probate Court Rule 19.

2.         The Committee added to the heading “Appearing Pro Hac Vice,” to clarify the topic of the rule.

 

 

 

 

RULE 20:  WITHDRAWALS

 

            An Attorney may withdraw an Appearance upon Motion granted by the Court.  In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown.  A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services.  A Withdrawal is not effective until the motion to withdraw is granted by the Court.

            Any Attorney wishing to withdraw an Appearance shall certify that a copy of the motion to withdraw has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties.

            Whenever an Attorney is allowed to withdraw an Appearance, and no other Appearance is contemporaneously entered, the Register shall notify the Party by mail of such withdrawal, and, unless the Party appears pro se or by an Attorney  by a date fixed by the Court:

            (a) any contested matter shall proceed as though that Party has defaulted and does not wish to be heard; or

            (b) in any uncontested matter, the Register shall issue a show cause for any fiduciary to appear before the Court.

            The Court upon Motion, or on its own Motion, may strike a Party from the record, if the Party no longer has an interest in the matter.

 

 

Rev. 1 - 05/17/1996

Rev. 2 - 06/14/1996

Rev. 3 - 07/12/1996

Rev. 4 - 08/16/1996

Rev. 5 - 09/30/1998

Rev. 6 - 07/14/1999

Rev. 7 - 08/04/1999

FINAL - 06/19/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior 20, with modifications, in conjunction with current Probate Court Rule 5, with modifications, as proposed Probate Court Rule 20.

2.         The Committee added the consequence of a show cause being issued in an uncontested matter where the fiduciary fails to file an Appearance after their Attorney has withdrawn.

3.         The Committee added the fifth paragraph to provide a procedure for striking parties from the record.

4.         The Committee replaced the title "Attorneys" with “Withdrawals,” to clarify the topic of the rule.

 

 

 

 

RULE 21:  PLEADINGS - Copies to all Parties

 

            Unless excused by the Court for good cause shown, any Person filing a Motion, Pleading, or correspondence with the Court shall forthwith furnish copies to all Attorneys, Pro Se Parties appearing of record, and to all Persons Beneficially Interested.  All such Motions and Pleadings shall contain a statement of compliance.

 

 

Rev. 1 - 06/14/1996

Rev. 2 - 07/12/1996

Rev. 3 - 08/16/1996

Rev. 4 - 12/02/1997

Rev. 5 - 03/11/1998

Rev. 6 - 03/25/1998

Rev. 7 - 04/22/1998

Rev. 8 - 05/27/1998

Rev. 9 - 06/17/1998

Rev. 10 - 07/22/1998

Rev. 11 - 09/30/1998

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 21, with modifications, in conjunction with the last paragraph of the current Probate Court Rule 3, with modifications, as proposed Probate Court Rule 21.

2.         The Committee discussed the issue of actually identifying the Person who has the obligation of furnishing courtesy copies to all interested parties.  Since the Person filing the Motion or Pleading has the obligation, the Committee decided to reword the rule to clarify this ambiguity.

3.         The Committee replaced the title "Attorneys" with "Pleadings" and added the heading “Copies to all Parties,” to clarify the topic of the rule.

 

 

 

 

RULE 22:  ATTORNEYS - Surety

 

            No Attorney shall be surety in any case pending before the Court.

 

 

Rev. 1 - 06/14/1996

Rev. 2 - 07/12/1996

Rev. 3 - 08/16/1996

FINAL - 04/21/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 22, with modifications, as proposed Probate Court Rule 22.  The Committee decided that the creation of a Probate Court Rule to address the subject matter contained in Superior Court Rule 22 was necessary.

2.          The Committee omitted "bail" as the term is not applicable to the Probate Court.

3.         The Committee added the heading “Surety,” to clarify the topic of the rule.

 

 

 

 

RULE 23:  SPECIFICATIONS

 

            In all contested matters, the Court or any Party may file a Motion for a filing of specifications which set forth the particulars for any claim or objection.  Specifications shall be filed within such time as the Court may order.  In those cases in which specifications have been filed, the hearing shall be limited to the grounds specified.  Specifications may be amended by filing a Motion with the Court, which may be granted or denied upon such terms as the Court may deem reasonable.

 

 

Rev. 1 - 06/14/1996

Rev. 2 - 07/12/1996

Rev. 3 - 08/16/1996

Rev. 4 - 12/30/1998

Rev. 5 - 05/08/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Rule 7, with modifications, as proposed Probate Court Rule 23.  Superior Court Rule 23 and current Probate Court Rule 7 both address "specifications," since Superior Court Rule 23 is limited to writs the committee decided to adopt current Probate Court Rule 7.

2.         The Committee added the requirement that Parties must file a motion to amend specifications.

 

 

 

 

RULE 24:  [Reserved for Future Use]

 

 

Rev. 1 - 06/14/1996

Rev. 2 - 08/16/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 24 addresses amendments, matters of form.  Proposed Probate Court Rule 135 adequately addresses amendments.  The Committee decided to reserve proposed Probate Court Rule 24 for future use.

 

 

 

 

RULE 25:  [Reserved for Future Use]

 

 

Rev. 1 - 06/14/1996

Rev. 2 - 08/16/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 25 addresses amendments, matters of form.  Proposed Probate Court Rule 135 adequately addresses amendments.  The Committee decided to reserve proposed Probate Court Rule 25 for future use.

 

 

 

 

RULE 26:  [Reserved for Future Use]

 

 

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 26 addresses amendments in matters of substance.  Proposed Probate Court Rule 135 adequately addresses amendments.  The Committee decided to reserve proposed Probate Court Rule 26 for future use.

 

 

 

 

RULE 27:  THIRD PARTY PRACTICE

 

            Whenever a third Party is, or may be, liable to a Respondent in any pending action for all or part of the Petitioner's claim against said Respondent or if said Respondent may have a claim against a third Party, depending upon the determination of an issue or issues in the pending action, the Respondent may bring an action against the third Party and, unless otherwise ordered on Motion of any Party, such action shall be consolidated for hearing with the pending action or, if justice requires, on such Motion said third Party may be made a Party to the pending action, for the purpose of being bound by the determination of any common issues; provided, however, that, except for good cause shown to prevent injustice and upon such terms as the Court may order, no such action shall be consolidated with or said third Party joined in said pending action, unless suit is brought against said third Party within sixty (60) days following the Return Day of said pending action.

            A third Party against whom an action is brought in accordance with this Rule and a Petitioner against whom a counterclaim has been filed may, under the same circumstances prescribed by this Rule, use the same procedure with respect to another Person and the same time limitation shall apply, except that as to a Petitioner the sixty (60) days shall begin to run on the date the counterclaim is filed.

            All existing rules and practices shall apply to actions commenced under this Rule.

            This Rule shall not be construed to limit or abridge in any way the existing common law practice of joining Parties in pending actions whenever justice and convenience require, or the giving of notice to third Parties to come in and defend any pending action or be bound by the outcome thereof.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

Rev. 4 - 08/04/1999

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 27, with modifications, as proposed Probate Court Rule 27.

2.         The Committee replaced "Plaintiff" and "Defendant" with "Petitioner" and "Respondent."

3.         The Committee replaced "trial" with "hearing."

4.         The Committee omitted the last paragraph of Superior Court Rule 27 regarding tort actions as it is not applicable to the Probate Court.

 

 

 

 

RULE 27-A:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 27-A addresses class actions. As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 27-A for future use.

 

 

 

 

RULE 28:  [Reserved for Future Use]

 

 

Rev. 1 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 28 addresses special pleas and brief statements. The Committee discussed the meaning of a brief statement and its possible use in the context of probate court matters.  The Committee ultimately decided to reserve proposed Probate Court Rule 28 for future use.

 

 

 

 

RULE 29:  ORDERS TO PLEAD

 

            The Court may in all cases order either Party to plead and also to file a statement in sufficient detail to give to the adverse Party and to the Court reasonable knowledge of the nature and grounds of the action or defense.  Upon failure to comply with such order, the Court may take such action as justice may require.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 29, as proposed Probate Court Rule 29. The Committee decided the creation of a Probate Court Rule to address the subject matter contained in Superior Court Rule 29 was necessary.

2.         The Committee replaced the title "Special Pleas and Brief Statement" with "Orders to Plead," to clarify the topic of the rule.

 

 

 

 

RULE 30:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 30 addresses pleas in abatement. As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 30 for future use.

 

 

 

 

RULE 31:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

FINAL - 09/09/1996

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 31 addresses pleas non est factum.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 31 for future use.

 

 

 

 

RULE 32:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 32 addresses disclaimers of land demanded in a writ of entry, or plea of non-tenure.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 32 for future use.

 

 

 

 

RULE 33:  COUNTERCLAIMS

 

            No counterclaim shall be filed after thirty (30) days from the Return Day, except by leave of the Court and upon payment of costs; and when a counterclaim is filed, a copy shall be given to all Parties of record.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

Rev. 4 - 12/16/1998

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 33, with modifications, as proposed Probate Court Rule 33.

2.         The Committee omitted any reference to set-off and recoupment since there is currently no provision for either in the Probate Court.

3.         The Committee replaced the title "Special Pleas and Brief Statements" with “Counterclaims,” to clarify the topic of the rule.

 

 

 

 

RULE 34:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 34 was repealed in 1982.  The Committee decided to reserve proposed Probate Court Rule 34 for future use.

 

 

 

 

RULE 35:  DISCOVERY

 

  a.  Discovery Methods.  Parties may obtain discovery by one or more of the following methods:  depositions upon oral examination or written questions; written interrogatories;  production of documents or things or permission to enter upon land or other property, for inspection and other purposes;  physical or mental examinations; and requests for admission.  Unless the Court orders otherwise, or unless otherwise provided in these Rules, the frequency of use of these methods is not limited.

  b.  Scope of Discovery.  Unless otherwise limited by order of the Court in accordance with these Rules, the scope of discovery is as follows:

            (1) In General.  Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the Party seeking discovery or to the claim or defense of any other Party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.  It is not ground for objection that the information sought shall be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

            (2) Trial Preparation: Materials.  Subject to the provisions of subdivision b(3) of this Rule, a Party may obtain discovery of documents and tangible things otherwise discoverable under subdivision b(1) of this Rule and prepared in anticipation of litigation or for trial by or for another Party or by or for that other Party's representative (including his or her Attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the Party seeking discovery has substantial need of the materials in the preparation of his case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an Attorney or other representative of a Party concerning the litigation.

            A Party may obtain without the required showing a statement concerning the action or its subject matter previously made by that Party.  Upon request, a person not a Party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person.  If the request is refused, the person may move for a court order.  The provisions of Rule 59 apply to the award of expenses incurred in relation to the Motion. For purposes of this paragraph, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

            (3) Trial Preparation: Experts.  Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision b(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

            (a)(i) A Party may through interrogatories require any other Party to identify each person, whom the other Party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.  (ii) Upon motion, the Court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision b(3)(c) of this Rule, concerning fees and expenses as the Court may deem appropriate.

            (b) A Party may discover facts known or opinions held by an expert, who has been retained or specially employed by another Party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the Party seeking discovery to obtain facts or opinions on the same subject by other means.

            (c) Unless manifest injustice would result, (i) the Court shall

require that the Party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions b(3)(a) and b(3)(b) of this rule, and (ii) with respect to discovery obtained under subdivision b(3)(a)(ii) of this Rule, the Court may require, and with respect to discovery obtained under subdivision b(3)(b), the Court shall require the Party seeking discovery to pay the other Party a fair portion of the fees and expenses reasonably incurred by the latter Party in obtaining facts and opinions from the expert.

  c.  Protective Orders.  Upon Motion by a Party or by the person from whom discovery is sought, and for good cause shown, the Court may make any order  which justice requires to protect a Party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:  (1) that the discovery not be had;  (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;  (3) that the discovery may be had only by a method of discovery other than that selected by the Party seeking discovery;  (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;  (5) that discovery be conducted with no one present except persons designated by the Court;  (6) that a deposition after being sealed be opened only by order of the Court;  (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;  (8) that the Parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court.

            If the motion for a protective order is denied in whole or in part, the Court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.  The provisions of Rule 59 apply to the award of expenses incurred in relation to the motion.

  d.   Sequence and Timing of Discovery.  Unless the Court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is  conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

  e.  Supplementation of Responses.  A party, who has responded to a request for discovery with a response that was complete when made, is under no duty to supplement his response to include information thereafter acquired, except as follows:

            1) A Party is under a duty seasonably to supplement his or her response with respect to any question directly addressed to (a) the identity and location of persons having knowledge of discoverable matters, and (b) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.

            (2) A Party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.

            (3) A duty to supplement responses may be imposed by order of the Court, agreement of the Parties, or at any time prior to trial through new requests for supplementation of prior responses.

  f.  Disclosure of Expert Witnesses.  Within thirty (30) days of a request by the opposing Party, or in accordance with an order of the Court following a discovery conference, a Party shall be required to supply a Disclosure of Expert Witness(es) as defined under Rule 702 of the Rules of Evidence, which document shall

            (1) identify each person, including any Party, whom the Party expects to call as an expert witness at trial,

            (2) provide a brief summary of the expert's education and experience relevant to his area of expertise,

            (3) state the subject matter on which the expert is expected to testify, and

            (4) state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.  The Party shall attach to the disclosure a copy of any expert report relating to such expert.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

Rev. 4 - 08/04/1999

Rev. 5 - 04/27/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 35, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 35.

2.         The Committee replaced the title "General Provisions Regarding Discovery" with “Discovery," to clarify the topic of the rule.

 

 

 

 

RULE 36:  WRITTEN INTERROGATORIES

 

            Any Party may serve, by mail or delivery by hand, upon any other Party written interrogatories relating to any matters which may be inquired into under Rule 44.

            Any Party propounding interrogatories shall provide the opponent with notice, substantially as set forth in the following form, of the obligation to answer said interrogatories within thirty days.  The notice shall be at the top of the first page and printed in capital, typewritten letters or in ten-point, bold-face print.  The form of the notice in substance shall be as follows:

 

                These interrogatories are propounded in accordance with Probate Court Rule 36.  You must answer each question separately and fully in writing and under oath.  You must return the original and one copy of your answers within thirty (30) days of the date you received them to the Party or Attorney who served them upon you.  If you object to any question, you must note your objection and state the reason therefor.  If you fail to return your answers within thirty (30) days, the party who served them upon you may inform the Court, and the Court shall make such orders as justice requires, including the entry of a conditional default against you.

 

            Interrogatories may be served at any time after service of the action.

            The Party serving the interrogatories shall furnish the answering Party with an original and two copies of the interrogatories.  The interrogatories will be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering Party to have his or her answer typed in.

            Interrogatories shall be answered in writing under oath by the Party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, by an officer or agent who shall furnish all information available to the Party.

            Each question shall be answered separately, fully and responsively in the space following the question, or, if insufficient, on additional pages or retyped pages repeating each interrogatory in full following by the answer, in such manner that the final document shall have each interrogatory immediately succeeded by the separate answer.

            If, in any interrogatory, a copy of a paper or document is requested, the copy shall be annexed to the answer.  If the copy is a report of an expert witness or a treating physician, it shall be the exact copy of the entire report or reports rendered by him or her, and the answering Party shall certify that the existence of other reports of that expert, either written or oral, are unknown to him or her and, if such become later known or available, he or she shall serve them promptly on the propounding Party but in any case not later than ten (10) days prior to pre-trial settlement conference.

            The Party, who is served with interrogatories, shall serve his or her answers thereto, by mail or delivery in hand, upon the Party propounding them within thirty (30) days after service of such interrogatories, or within thirty (30) days after the return day, whichever date is later.  The Parties may extend such time by written agreement.

            The answers shall be served, together with the original and one (1) copy of the interrogatories upon the propounding Party.  If copies of papers are annexed to answers, they need be annexed to only one set.

            If a Party, upon whom interrogatories are served, objects to any questions propounded therein, he or she may either answer the question by stating it is improper, or he or she may, within twenty (20) days after the service of interrogatories upon him or her, move to strike any question, setting out the specific grounds of objection.  He or she shall make timely answer, however, to all questions to which he or she does not object.  Interrogatories, which are not stricken, shall be answered within such unexpired period of the thirty (30) days above provided as remained when the Motion was filed or within such time as the Court directs.  The propounder of a question answered by a statement that it is improper may, within twenty (20) days after service of the answers upon him or her, move to compel an answer to the question, and, if the Motion is granted, the question shall be answered within such time as the Court directs.

            If a Party, who is served with interrogatories requesting copies of papers, objects to the furnishing thereof, he or she shall, in lieu of complying with the request, either state with specificity the reasons for his or her noncompliance or invite the propounder to inspect and copy the papers at a designated time and place.  The propounder of a request for a copy of a paper, which is not complied with, may, within twenty (20) days after the service of the answers upon him or her, file a Motion seeking compliance with the request or for other appropriate relief.

            Motions to strike interrogatories or to compel more specific answers thereto shall include a statement summarizing the nature of the action and shall have annexed thereto the text of the questions and answers, if any, objected to.

            If the Court finds that a Motion, which is made pursuant to this Rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse Party that was frivolous or taken for the purpose of delay, the Court may order the offending Party to pay the amount of reasonable expenses, including Attorney's fees, incurred by the other Party in making or resisting the Motion.

            A Party may file more than one (1) set of interrogatories to an adverse Party, but the total number of interrogatories shall not exceed fifty (50), unless the Court otherwise orders for good cause shown after the proposed additional interrogatories have been filed. In determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be counted separately, whether or not it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.

            The adverse Party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.

            If a Party, who has furnished answers to interrogatories, thereafter obtains information which renders such answers incomplete or inaccurate, amended answers shall be served in accordance with Rule 35E.

            Interrogatories and answers may be used at the trial to the same extent as depositions.  If less than all of the interrogatories and answers thereto are marked or read into evidence by a Party, an adverse Party may read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read into evidence.

            Neither the interrogatories nor the answers need be filed with the Register unless the Court so directs at the pretrial settlement conference or at trial.

            If the Party, upon whom interrogatories have been served, shall fail to answer said interrogatories within thirty (30) days, or any enlarged period, unless written objection to the answering of said interrogatories is filed within that period, said failure shall result in a conditional default being entered by the Register upon Motion being filed indicating such failure to answer.  The Party failing to answer shall receive notice of the conditional default.  The conditional default shall be vacated if the defaulted Party answers the interrogatories within ten (10) days of receiving notice thereof and moves to strike the conditional default.  If the defaulted Party fails to move to strike the conditional default within ten (10) days of receiving notice thereof, the adverse Party may move to have a default judgment entered and damages assessed in connection therewith.  Unless the claim is fully liquidated and not subject to dispute as to amount or remedy, the Court shall have a hearing on damages.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

Rev. 4 - 12/02/1998

Rev. 5 - 08/04/1999

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 36, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 36.

2.         The Committee replaced the last sentence of the rule to reflect when a hearing is required.

 

 

 

 

RULE 36-A:  WRITTEN INTERROGATORIES - Objections

 

            When objections are made to interrogatories or requests for admissions, before there is any court hearing regarding said objections, counsel for the Parties shall attempt in good faith to settle the objections by agreement.  It shall be the responsibility of counsel for the objecting Party to initiate such attempt and to notify the Register if the objections are settled by agreement.

            If, following such conference, counsel are unable to settle objections, counsel for the objecting Party shall notify the Register and request a hearing on such objections as remain unsettled.

            Where an objection to an interrogatory has been withdrawn by agreement of counsel or has been overruled by the Court, the answer to such interrogatory will be served within ten (10) days thereafter.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 36-A, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 36-A.

2.         The Committee added the heading "Objections," to clarify the topic of the rule.

 

 

 

 

RULE 37:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 37 addresses a limitation on use of depositions at trial.  As this Rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 37 for future use.

 

 

 

 

RULE 38:  DEPOSITIONS - Notice

 

            No notice to the adverse Party of the taking of depositions shall be deemed reasonable unless served at least three (3) days, exclusive of the day of service and the day of the deposition, before the day on which they are to be taken.  Provided, however, that twenty (20) days' notice shall be deemed reasonable in all cases, unless otherwise ordered by the Court.  No deposition shall be taken within twenty (20) days after service of the Petition, or other Pleading, except by agreement or by permission of the Court for good cause shown.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

Rev. 4 - 08/04/1999

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 38, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 38.

2.         The Committee replaced "leave," with "permission."

3.         The Committee added the heading "Notice," to clarify the topic of the rule.

 

 

 

 

RULE 39:  DEPOSITIONS - Stenographer

 

            Every notice of a deposition to be taken within the State shall contain the name of the stenographer or the stenographer’s firm proposed to record the testimony.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 39, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 39.

2.         The added “or the stenographer’s firm” since the individual stenographer’s name may not be known.

3.         The Committee added the heading "Stenographer," to clarify the topic of the rule.

 

 

 

 

RULE 40:  DEPOSITIONS - Delivery of Notice

 

            When a statute requires notice of the taking of depositions to be given to the adverse Party, it may be given to such Party or to the Party's Attorney of record.  In cases where the action is in the name of a nominal Party and the Petition, Motion, Pleading, or docket discloses the real Party in interest, notice shall be given either to the real Party in interest or to the Attorney of record. Notices given pursuant to this Rule may be given by mail or by service in hand.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

Rev. 3 - 08/12/1999

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 40, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 40.

2.         The Committee retained the term "nominal Party," although it was unsure of its application in Probate Court.

3.         The Committee added the heading “Delivery of Notice,” to clarify the topic of the rule.

 

 

 

 

RULE 41:  DEPOSITIONS - Procedure

 

            The interrogatories shall be asked by the Pro Se Parties or Attorneys, and the interrogatories and answers shall be taken in shorthand or other form of verbatim reporting approved by the Court and transcribed by a competent stenographer agreed upon by the Pro Se Parties or Attorneys present at the deposition.  In the absence of such agreement, the stenographer shall be designated by the Court. Failure to object in writing to a stenographer in advance of the taking of a deposition shall be deemed agreement to the stenographer recording the testimony.

            No deposition, as transcribed, shall be changed or altered, but any alleged errors may be set forth in a separate document attached to the original and copies.

            The magistrate shall cause to be noted any objection to any interrogatory or answer without deciding its competency.  If complaint is made of interference with any witness, the magistrate shall cause such complaint to be noted and shall certify the correctness or incorrectness thereof in the caption.

            Upon Motion, the Court may order the filing of depositions, and, upon failure to comply with such order, the Court may take such action as justice may require.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 08/16/1996

Rev. 3 - 09/09/1996

Rev. 4 - 08/12/1999

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 41, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 41.

2.         Magistrates are not currently utilized in depositions, however, the Committee retained the term "Magistrate" for consistency.

3.         The Committee added the heading "Procedure," to clarify the topic of the rule.

 

 

 

 

RULE 42:  DEPOSITIONS - Out of State

 

            The signature of a Person outside the State, acting as an officer legally empowered to take depositions or affidavits, with his or her seal affixed, where one is required, to the certificate of an oath administered by him or her in the taking of affidavits or depositions, shall be prima facie evidence of his or her authority so to act.

 

 

Rev. 1 - 07/12/1996

Rev. 2 - 09/09/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 42, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 42.

2.         The Committee omitted "in civil actions" as they are not applicable in the Probate Court.

3.         The Committee added the heading “Out of State," to clarify the topic of the rule.

 

 

 

 

RULE 43:  [Reserved for Future Use]

 

 

Rev. 1 - 07/12/1996

FINAL - 09/09/1996

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 43 addresses waiver of the right to object to captions to depositions.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 43 for future use.

 

 

 

 

RULE 44:  DEPOSITIONS AND INTERROGATORIES - Refusal to Answer

 

            The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

            If any deponent refuses to answer any question propounded on deposition, or any Party fails or refuses to answer any written interrogatory authorized by these Rules, or fails to comply within twenty (20) days after written request to, the Party propounding the question may, upon notice to all Persons affected thereby, apply by Motion to the Court for an order compelling an answer.  If the Motion is granted, and if the Court finds that the refusal was without substantial justification or was frivolous or unreasonable, the Court may, and ordinarily will, require the deponent and the Party or Attorney advising the refusal, or any of them, to pay the examining or requesting Party the reasonable expenses incurred in obtaining the order, including reasonable counsel fees.

            If the Motion is denied and if the Court finds that the Motion was made without substantial justification or was frivolous or unreasonable, the Court may, and ordinarily will, require the examining Party or the Attorney advising the Motion, or both of them, to pay to the opposing party or witness the reasonable expenses incurred in opposing the Motion, including reasonable counsel fees.

 

 

Rev. 1 - 09/09/1996

Rev. 2 - 09/30/1996

Rev. 3 - 12/16/1998

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 44, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 44.

2.         The Committee added to the title "Interrogatories" and the heading "Refusal to Answer," to clarify the topic of the rule.

 

 

 

 

RULE 45:  USE OF VIDEOTAPE DEPOSITIONS - Procedure

 

            The Court, within its discretion, may allow the use of videotape depositions that have been taken by agreement. If the Parties cannot reach such an agreement, the Court may, in its discretion, order the taking and/or use of such depositions.  At the commencement of the videotape deposition, the Pro Se Party or Attorney representing the Party taking the deposition shall state whose deposition it is, for what case it is being taken, where it is being taken, who will be asking the questions, and the date and the time of the deposition.  Care shall be taken to have the witnesses speak slowly and distinctly and that papers be readily available for reference without undue delay and unnecessary noise.  All persons attending the deposition shall comport themselves at all times as if they were actually in the courtroom.

            If any problem arising as to the admissibility or inadmissibility of evidence, this should be handled in the same manner as written depositions.

 

 

Rev. 1 - 09/09/1996

Rev. 2 - 09/30/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 45, modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 45.

2.         The Party taking the deposition is responsible for stating the case information at the commencement of the deposition, and not the deponent, therefore this reference was changed in the third sentence of the first paragraph.

3.         The Committee changed the last sentence of the first paragraph to reflect the necessity that "all persons" not only "counsel and witnesses" comport themselves as if they were in the courtroom.

4.         The Committee added the heading “Procedure,” to clarify the topic of the rule.

 

 

 

 

RULE 45-A:  USE OF VIDEOTAPE DEPOSITIONS - Procedure for Objections

 

            A Party objecting to a question asked of, or an answer given by, a witness whose testimony is being taken by videotape shall provide the Court, either at the pretrial conference or if no pretrial conference ten (10) days before trial, with a transcript of the videotape proceedings that is sufficient to enable the Court to act upon the objection, or the objection shall be deemed waived.

            The provisions of Rule 41 with respect to objections to testimony or evidence shall also apply to a videotape deposition.

 

 

Rev. 1 - 09/09/1996

Rev. 2 - 09/30/1996

Rev. 3 - 08/12/1999

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 45-A, with modifications, in conjunction with current Probate Court Rule 10, as proposed Probate Court Rule 45-A.

2.         The Committee added the heading “Procedure for Objections,” to clarify the topic of the rule.

 

 

 

 

RULE 46:  CONTINUANCES - Unavailability of a Material Witness

 

            No Motion for a continuance based on the unavailability of material testimony shall be granted, unless supported by an affidavit stating the name of the witness, if known, whose testimony is unavailable, the particular facts the witness is expected to prove with the grounds of such expectation, and what has been done to procure his or her attendance or deposition, so that the Court may determine whether due diligence has been exercised for that purpose.  No action shall be continued on such Motion if the adverse Party will agree that the affidavit shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated, and such agreement shall be in writing at the foot of the affidavit and signed by the Pro Se Party or Attorney.

 

 

Rev. 1 - 09/09/1996

Rev. 2 - 09/30/1996

Rev. 3 - 03/25/1997

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 46, with modifications, as proposed Probate Court Rule 46.

2.         The replaced "want" with "unavailable."

3.         The Committee omitted from the title "Postponements and Settlements" and added the heading "Unavailability of a Material Witness," to clarify the topic of the rule.

 

 

 

 

RULE 47:  CONTINUANCES - Unavailability of Material Evidence

 

            Rule 46 shall apply, with necessary changes, when the Motion is grounded on the unavailability of any material document, paper, or other evidence of like nature.

 

 

Rev. 1 - 09/09/1996

Rev. 2 - 09/30/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 47, with modifications, as proposed Probate Court Rule 47.

2.         The Committee replaced "want" has been changed to "unavailability."

3.         The Committee omitted the last phrase since of Superior Court Rule 47 "or on the absence of a material witness...," since the unavailability of a material witness is addressed in proposed Probate Court Rule 46.

4.         The Committee omitted from the title "Postponements and Settlements" and added the hearing "Unavailability of Material Evidence," to clarify the topic of the rule.

 

 

 

 

RULE 48:  CONTINUANCES 

 

            Continuances may be granted upon such terms as the Court may order.

 

 

Rev. 1 - 09/09/1996

Rev. 2 - 09/30/1996

Rev. 3 - 10/07/1996

FINAL - 04/27/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 48, with modifications, as proposed Probate Court Rule 48.

2.         The Committee omitted from the title "Postponements and Settlements," to clarify the topic of the rule.

 

 

 

 

RULE 49:  CONTINUANCES - Motions

 

            All motions for continuance shall be made in writing setting forth the grounds relied on and shall be signed and dated by the Pro Se Party or Attorney.  Other Parties wishing to join in any such Motion shall also do so in writing.

            Motions filed by Attorneys shall contain a statement that the client has been notified of the reasons for the continuance, has assented thereto either orally or in writing, and has been forwarded a copy of the Motion.

            All such Motions shall be filed within ten (10) days from the date of the mailing of the notice of a hearing or trial.  Any such Motion that is filed after the (10) days from the date of the mailing of such notice shall not be considered by the Court, except for good cause shown.

 

 

Rev. 1 - 09/30/1996

Rev. 2 - 10/07/1996

Rev. 3 - 08/12/1999

Rev. 4 - 05/08/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 49, with modifications, as proposed Probate Court Rule 49.

2.         The Committee omitted any reference to "postponement", since the more conventional, desirable term of "continuance" is sufficient.

3.         The Committee modified and added the last sentence of Superior Court Rule 50 to the first sentence of proposed Probate Court Rule 49.

4.         The Committee replaced "of counsel" with "of parties," since an agreement may be made by the Pro Se Party or Attorney-in-Fact.

5.         The Committee replaced "notice of a hearing or trial" with "Register's notice" in the first sentence of the second paragraph to clarify the rule.

6.         The Committee omitted any requirement for a supporting affidavit in keeping with Probate Court practice.

7.         The Committee omitted from the title "Postponements and Settlements" and added the heading "Motions," to clarify the topic of the rule.

 

 

 

 

RULE 49-A:  CONTINUANCES - Scheduling Conflict

 

            Where a trial has been scheduled in one case prior to the scheduling of another matter in another Court, or elsewhere, where an Attorney or Party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and dated except as follows:

            (a)  A subsequently scheduled case involving trial by jury in a District, Superior, or Federal District Court, or argument before the Supreme Court.

            (b)  Unusual circumstances causing the respective Courts to agree that an order of precedence other than the above shall take place.

 

 

Rev. 1 - 09/15/1999

FINAL - 04/28/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted proposed Superior Court Rule

49-A, as proposed Probate Court Rule 49-A.

2.         The Committee omitted from the title "Postponements and Settlements" and added the heading "Scheduling Conflict," to clarify the topic of the rule.

 

 

 

 

RULE 50:  CONTINUANCES - Court Approval Necessary

 

            All actions shall be in order for hearing or trial as scheduled and, notwithstanding agreements of Parties, shall not be continued except for good cause shown and upon such terms as the Court may order. 

 

 

Rev. 1 - 09/30/1996

Rev. 2 - 12/02/1998

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 50, with modifications, as proposed Probate Court Rule 50.

2.         The Committee omitted any reference to "postpone," since the more conventional term "continue" is sufficient.

3.         The Committee omitted any reference to "during the term at which they are entered," as it is not applicable in the Probate Court.

4.         The Committee replaced "of counsel" with "of parties," since an agreement may be made by the Pro Se Party or Attorney-in-Fact.

5.         The Committee added "hearing or" to the first sentence of proposed Probate Court Rule 50, since continuances are applicable to hearings as well as trials.

6.         The Committee deleted the last sentence of Superior Court Rule 50 and added it to proposed Probate Court Rule 49, since that rule deals with "Motions" and their contents.

7.         The Committee omitted from the title "Postponements and Settlements" and added the heading "Court Approval Necessary," to clarify the topic of the rule.

 

 

 

 

RULE 50-A:  RECUSAL

 

            All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the Court.  Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the Court.  Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground.  If a record of the proceedings is not available, the trial judge shall make a record of the request, the Court's findings, and its order.

 

 

Rev. 1 - 10/28/1998

FINAL - 04/28/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 50-A, with modifications, as proposed Probate Court Rule 50-A. 

2.         The Committee replaced "judge" with "Court" at the end of the second sentence.

3.         The Committee replaced the title "Continuances, Postponements, and Settlements" with "Recusal," to clarify the topic of the rule.

 

 

 

 

RULE 51:  SETTLEMENTS - Docket Markings

 

            Whenever a Pro Se Party or Attorney informs the Register that a particular matter has been settled and that agreements will be filed, the Register shall forthwith notify by mail the parties of record or their Attorneys of such notice of settlement.  If the settlement agreements are not filed within thirty (30) days after the mailing of such notice, the Register shall summon the parties to a hearing to determine what court action shall be taken.

 

 

Rev. 1 - 09/30/1996

Rev. 2 - 10/07/1996

FINAL - 04/28/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 51, with modifications, as proposed Probate Court Rule 51.

2.         The Committee omitted "orally or in writing" in the first sentence since the form of communication used to inform the Register of a settlement is irrelevant.

3.         The Committee decided that a hearing should take place to determine how the matter will be marked, and it modified the last sentence of the paragraph accordingly.

4.         The Committee omitted from the title "Continuances and Postponements" and added the heading "Docket Markings," to clarify the topic of the rule.

 

 

 

 

RULE 52:  CONTINUANCES - Extension of Return Day

 

            If service of process cannot be completed within the time set forth in the orders of notice, upon written Motion, the Court may extend the Return Day and the date for completion of service upon such terms as justice may require.

 

 

Rev. 1 - 09/30/1996

Rev. 2 - 10/07/1996

Rev. 3 -  08/12/1999

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 52, with modifications, as proposed Probate Court Rule 52.

2.         The Committee adopted the principle behind Superior Court Rule 52, extension of the return day, and modified it to apply to Probate Court procedure.

3.         The Committee omitted from the title "Postponements and Settlements" and added the heading "Extension of Return Day," to clarify the topic of the rule.

 

 

 

 

RULE 53:  [Reserved for Future Use]

 

 

Rev. 1 - 09/30/1996

Rev. 2 - 08/12/1999

Rev. 3 - 05/08/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 53 addresses the presumption of admittance of signatures or indorsements.  Since proposed Probate Court Rule 54 provides for similar relief, the Committee decided to reserve proposed Probate Court Rule 53 for future use.

 

 

 

 

RULE 54:  ADMISSION OF RELEVANT FACTS, GENUINENESS OF DOCUMENTS AND SIGNATURES - Procedure

 

            Any Party desiring to obtain admission of the signature on or the genuineness of any relevant document or of any relevant facts which he or she believes not to be in dispute, may file a request therefor with the Register, accompanied by any original documents involved, and deliver a copy of such request and documents to the adverse Pro Se Party or Attorney.  Each of the matters, of which an admission is requested, shall be deemed admitted, unless within thirty (30) days after such delivery the adverse Party files with the Register and delivers a copy thereof to the Pro Se Party or Attorney requesting such admission, either a sworn denial thereof or a written objection on the ground of privilege or that it is otherwise improper.

            If objection is made to part of a request, the remainder shall be answered within the time limit, and when good faith requires that a Party qualify his or her answer or deny only part of a matter, he or she shall specify so much of it as is true and qualify or deny the remainder.

            Any Party who without good reason or in bad faith denies under this rule any signature or fact which has been requested and which is thereafter proved, or who without good reason or in bad faith requests such admission under this rule and thereafter fails to prove it, may, on Motion of the other Party, be ordered to pay the reasonable expenses, including counsel fees, incurred by such other Party in proving the signature or fact or in denying the request, as the case may be.

 

 

Rev. 1 - 09/30/1996

Rev. 2 - 10/07/1996

Rev. 3 - 12/13/1999

Rev. 4 - 05/08/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 54, with modifications, in conjunction with current Probate Court Rule 11, as proposed Probate Court Rule 54.

2.         The Committee omitted "after the return day of the action"  in the first sentence of the first paragraph, since its reference is inapplicable in the Probate Court context.

3.         The Committee omitted "without permission of the Court" in the first sentence of the first paragraph, since it is assumed court permission is not required, unless specifically stated to the contrary.

4.         The Committee omitted "by mail or in hand" in the second sentence of the first paragraph, since the mode of delivery for an admission request is of no consequence.

5.         The Committee omitted the reference to Rule 53, since Rule 53 has been eliminated.

6.         The Committee added the heading "Procedure," to clarify the topic of the rule.

 

 

 

 

RULE 55:  [Reserved for Future Use]

 

 

Rev. 1 - 09/30/1996

FINAL - 10/07/1996

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 55 addresses the filing of papers.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 55 for future use.

 

 

 

 

RULE 56:  WITHDRAWING PAPERS

 

            Papers shall not be withdrawn from the files except by permission of the Court and upon a receipt therefor being filed.

 

 

Rev. 1 - 09/30/1996

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 56, with modifications, as proposed Probate Court Rule 56.

2.         The Committee replaced "leave" with "permission".

 

 

 

 

RULE 57:  MOTIONS - Requirements

 

            The Court will not hear any Motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the Parties or their Attorneys; and the same rule shall be applied as to all facts relied on in opposing any Motion.

 

 

Rev. 1 - 09/30/1996

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 57, with modifications, in conjunction with the first paragraph of current Probate Court Rule 9, as proposed Probate Court Rule 57.

2.         The Committee added the heading "Requirements," to clarify the topic of the rule.

 

 

 

 

RULE 57-A:  MOTIONS - Certification of attempt to Obtain Concurrence

 

            Any Pro Se Party or Attorney filing a Motion shall certify to the Court that such Pro Se Party or Attorney has made a good faith attempt to obtain concurrence in the relief sought, except in the case of dispositive Motions, Motions for contempt or sanctions, or comparable Motions where it can be reasonably assumed that the Pro Se Party or Attorney will be unable to obtain concurrence.

 

 

Rev. 1 - 10/28/1998

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 57-A, with modifications, as proposed Probate Court Rule 57-A.

2.         The Committee added the heading "Certification of Attempt to Obtain Concurrence," to clarify the topic of the rule.

 

 

 

 

RULE 58:  MOTIONS - Objections and Oral Argument

 

            The Court shall hold any Motion for ten (10) days before acting thereon, unless assented to by all Parties.  The Court may act on a Motion on the basis of the Pleadings and record before it.  Any objection to a Motion shall be filed within ten (10) days of the filing of such Motion.  Failure to object to the Motion shall not, in and of itself, be grounds for granting the Motion.

            No oral argument or evidentiary hearing shall be scheduled unless requested in writing by the Pro Se Party or Attorney within ten (10) days after the filing of the Motion or objection thereto. The request for oral argument or evidentiary hearing shall contain the reasons why the oral argument or evidentiary hearing will further assist the Court in determining the pending issue(s).

            Upon request of a Pro Se Party or Attorney, motions to dismiss shall be heard as soon as practicable, and no later than thirty (30) days prior to the date scheduled for trial on the merits, unless the Court shall otherwise order.  All necessary evidence shall be presented at such hearing.

 

 

Rev. 1 - 10/07/1996

Rev. 2 - 03/31/2000

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 58, with modifications, in conjunction with Probate Court Rule 9, as proposed Probate Court Rule 58.

2.         The Committee adopted the principle behind Superior Court Rule 58, i.e. the deadlines for requesting an oral argument or evidentiary hearing upon the filing of motions and objections, and modified it to apply to Probate Court procedure.

3.         The Committee replaced "of counsel" with "pro se Party or Attorney" in the first sentence of the third paragraph.

4.         The Committee replaced "presiding judge" with "Court" in the third paragraph.

5.         The Committee added the heading "Objections and Oral Argument," to clarify the topic of the rule.

 

 

 

 

RULE 58-A:  MOTIONS FOR SUMMARY JUDGMENT

 

            In accordance with RSA 547:11-f, as amended, the following procedures shall govern Motions for summary judgment in the Probate Court.  Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-a, as amended, which is incorporated herein.  Such motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the Court in support or opposition to the motion for summary judgment.  Only such materials as are essential and specifically cited and referenced in the motion for summary judgment, responses, and supporting memoranda shall be filed with the Court.  In addition, except by permission of the Court received in advance, no such motion, response, or supporting memorandum of law shall exceed twenty (20) double-spaced pages.  The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the Court.  Excerpts of documents and discovery materials shall be used whenever possible. 

            Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability, the Parties must provide the Court with a statement of agreed facts sufficient to explain the case and place it in a proper context so that the Court might more readily understand what it will be hearing in the remaining portion of the trial.  Absent such an agreement on facts, the matters of liability and damages cannot be severed.

            If it appears to the Court at any time that any motion for summary judgment or affidavit has not been presented in good faith or has been presented solely for the purpose of delay, the Court shall forthwith order the Party and/or the Attorney presenting it to pay to the other Party the amount of the reasonable expenses which the filing of the Motion or affidavit caused the Party to incur, including reasonable attorney's fees.  Such additional sanctions may be imposed as justice may require.

 

 

Rev. 1 - 10/26/1998

Rev. 2 - 12/02/1998

Rev. 3 -  09/14/1999

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 58-A, with modifications, in conjunction with current Probate Court Rule 9-B, as proposed Probate Court Rule 58-A.

2.         The Committee omitted all references to "jury" and "jurors" in the second paragraph, since there are no jury trials in the Probate Court.

3.         The Committee added the title "Motions for Summary Judgment," to clarify the topic of the rule.

 

 

 

 

RULE 59:  PLEADINGS - Frivolous Conduct

 

            The Court may assess reasonable costs, including reasonable counsel fees, against any Party or Attorney whose frivolous or unreasonable conduct makes necessary the filing of any Pleading or hearing thereon.

 

 

Rev. 1 - 10/07/1996

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 59, with modifications, in conjunction with the fourth paragraph of current Probate Court Rule 9, with modifications, as proposed Probate Court Rule 59.

2.         The Committee discussed the ambiguity in the reference to "conduct" as it follows "frivolous or unreasonable."  The Committee agreed that "conduct" also applies to the filing of frivolous Motions.

3.         The Committee modified the last phrase to refer to any pleading, not just a motions.

4.         The Committee added the heading "Frivolous Conduct," to clarify the topic of the rule.

 

 

 

 

RULE 59-A:  MOTIONS FOR RECONSIDERATION

 

            (1) A motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the Register's written notice of the order or decision, which shall be mailed by the Register on the date of the notice.  The Motion shall state, with particularity, points of law or fact that the Court has overlooked or misapprehended and shall contain such argument in support of the Motion as the movant desires to present;  but the Motion shall not exceed ten (10) pages.  A hearing on the Motion shall not be permitted except by order of the Court.

            (2) No answer to a motion for reconsideration or other post-decision relief shall be required unless ordered by the Court, but any answer or objection must be filed within ten (10) days after the filing of the Motion.

            (3) If a motion for reconsideration or other post-decision relief is granted, the Court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.

            (4) The filing of a motion for reconsideration or other post-decision relief shall not stay any order of the Court unless, upon specific written request, the Court has ordered such a stay.

 

 

Rev. 1 - 10/07/1996

Rev. 2 - 10/30/1996

Rev. 3 - 10/26/1998

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 59-A, with modifications, in conjunction with current Probate Court Rule 9-A, with modifications, as proposed Probate Court Rule 59-A.

2.         The Committee replaced "within ten days of notification of the motion" with "within ten days after the filing of the Motion" to be consistent with Probate Court practice.

3.         The Committee added to the title "For Reconsideration," to clarify the topic of the rule.

 

 

 

 

RULE 60:  HEARINGS - Contested Matters

 

             In any contested matter, the Register shall give at least ten (10) days notice of any hearing or other proceeding before the Court to the Parties, Persons Beneficially Interested, or to their Attorneys, unless it appears that justice or a specific statute requires otherwise.  Such notice, however, may be waived in writing by any responding Party, Persons Beneficially Interested, or Attorney.  An appearance in person or through an Attorney and participation in the hearing shall be deemed a waiver of notice.

 

 

Rev. 1 - 04/20/1996

Rev. 2 - 12/02/1997

Rev. 3 - 02/25/1998

Rev. 4 - 03/25/1998

Rev. 5 - 04/22/1998

Rev. 6 - 05/27/1998

Rev. 7 - 06/17/1998

Rev. 8 - 06/21/1999

Rev. 9 - 12/07/1999

FINAL - 07/07/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 60 addresses paying money into the Court which is not applicable to the Probate Court.

2.         The Committee adopted the fifth paragraph of current Probate Court Rule 9, with modifications, as proposed Probate Court Rule 60.

3.         The Committee decided not to adopt current Probate Court Rule 39 addressing contested matters, since it is no longer applicable in the Probate Court context.

4.         The Committee reduced the current fourteen day notice to ten days to be consistent with other rules addressing proceedings.

5.         The Committee replaced the title "Paying Money into Court" with "Hearings" and added the heading "Contested Matters," to clarify the topic of the rule.

 

 

 

 

RULE 61:  NOTICE OF DECISIONS - Uncontested Matters

 

            Upon the entry of a decision on any uncontested Motion or other Pleading, the Register shall forthwith send a notice of decision to the Attorney for the moving Party or the moving Party, if not represented by counsel, and to the Attorney for the Fiduciary or the Fiduciary, if not represented by counsel.

            Upon the entry of a decision on any uncontested account or inventory, the Register shall forthwith send a notice of decision to the Attorney for the Fiduciary or the Fiduciary, if not represented by counsel.

 

 

Rev. 1 - 05/27/1998

Rev. 2 - 06/17/1998

Rev. 3 - 07/22/1998

Rev. 4 - 03/27/2000

FINAL - 07/18/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 61 addresses paying money into the Superior Court which is not applicable to the Probate Court.

2.         The Committee adopted the principle behind Administrative Order 1998-07 (Revised), with modifications, as proposed Probate Court Rule 61.

3.         The Committee replaced the title "Paying Money into Court" with "Notice of Decisions" and added the heading "Uncontested Matters," to clarify the topic of the rule.

 

 

 

 

RULE 61-A:  NOTICE OF DECISIONS - Contested Matters

 

            Upon the entry of a decision on any contested Petition, Motion, Account, Inventory, or other Pleading, the Register shall forthwith send a notice of the decision with a letter of transmittal to all Attorneys appearing of record, Pro Se Parties, and Persons Beneficially Interested.  A copy of the letter of transmittal shall be made a part of the records by the Register.

 

 

Rev. 1 - 05/27/1998

Rev. 2 - 06/17/1998

Rev. 3 - 07/22/1998

Rev. 4 - 03/27/2000

FINAL - 07/18/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 61-A addresses jury questionnaire dissemination which is not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 40, with modifications, as proposed Probate Court Rule 61-A.

3.         The Committee replaced "in contested matters" with "any contested Petition, Motion, Account, Inventory, or other Pleading," in the first sentence to clarify the rule.

4.         The Committee replaced "all interested parties or their counsel" with "all Attorneys appearing of record, Pro Se Parties, and Persons Beneficially Interested," to clarify the rule

5.         The Committee added the title "Notice of Decisions" and added the heading "Contested Matters," to clarify the topic of the rule.

 

 

 

 

RULE 62:  STRUCTURING CONFERENCES AND PRETRIAL PROCEDURES

 

            The Court shall schedule a structuring conference for each contested case entered on the docket. The structuring conference shall occur between sixty (60) and one hundred twenty (120) days after the return day or at such other time as the Court may order.

            The Pro Se Party or Attorney shall attend the structuring conference and shall be prepared and authorized to discuss the issues and set schedules for discovery and other case preparation, including additional conferences with the Court, Alternative Dispute Resolution, settlement or trial.

            Ten (10) days prior to the structuring conference all Pro Se Parties or Attorneys shall file summary statements necessary to support their respective claims, defenses or counterclaims.  This summary statement shall be comprehensive and made in good faith, but shall not be admissible at trial.  The purpose of this summary statement is to apprise the court of the nature of the claims, defenses, and legal issues likely to arise.

            At or immediately after the structuring conference, the Court shall issue a structuring conference order which may include discovery deadlines and dates for an additional conference with the Court, filing of pretrial statements, filing of motions, filing of requests for findings of fact, rulings of law and memoranda of law, trial management conference, and trial.

            If a pretrial statement is ordered it shall include, by numbered paragraphs, a detailed, comprehensive, and good faith statement, setting forth, if applicable:

            1. Uncontested issues of fact.

            2. Contested issues of fact.

            3. Applicable law.

            4. Disputed issues of law.

            5. Specific claims, objections or position of the contestant.

            6. Specific defenses.

            7. A list of all exhibits to be offered in the case of each Party. The Pro Se Parties or Attorneys shall bring all exhibits or exact copies to the pretrial conference.

            8. A list of all depositions to be read into evidence.

            9. A waiver of claims, denials or objections.

            10. A list of the names and addresses of all witnesses who may be called.

            11. Whether there will be a request for a view and, if so, who shall pay the cost in the first instance.

            12.  The names and addresses of the trial attorneys.

            Except for good cause shown, only witnesses listed in the pretrial statement will be allowed to testify and only exhibits, so listed, will be received in evidence.

            In every case scheduled for trial, the Court may schedule such pretrial conferences as it deems necessary, at which counsel shall have their clients present or available for contact by telephone and shall be prepared to discuss and effectuate settlement and, if necessary, conduct of the trial.

            Failure to comply with this Rule shall constitute grounds for sanctions, in the discretion of the Court.

 

 

Rev. 1 - 10/07/1996

Rev. 2 - 10/30/1996

Rev. 3 - 11/19/1996

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 62, with modifications, in conjunction with current Probate Court Rule 12, with modifications, as proposed Probate Court Rule 62.

2.         The Committee omitted any reference to "jury," since there are no jury trials in the Probate Court.

3.         The Committee omitted the language in numbered paragraphs (7) through (9) of Superior Court Rule 62 that related to personal injury matters brought in the Superior Court.

4.         The Committee replaced "Clerk" with "Court."  The Committee agreed that the scheduling and partaking of structuring conferences should be done by the Court and not the Register.

5.         The Committee omitted the third to the last paragraph of Superior Court Rule 62, since there are no jury trials in the Probate Court.

6.         The Committee omitted the second to the last paragraph of Superior Court Rule 62, since the filing of findings of fact, rulings of law and memoranda of law are addressed in proposed Probate Rule 72.

7.         The Committee modified the last paragraph to read that sanctions would be imposed in the discretion of the Court, rather than a specific entry of non-suit or default.

8.         The Committee replaced in the title "Pretrial Settlement Conferences" with "Structuring Conferences," to clarify the topic of the rule.

 

 

 

 

RULE 63:  STANDING PRETRIAL ORDERS

 

            (a) Copies of all medical reports relating to the litigation, in the possession of the Parties, shall be furnished to opposing counsel on receipt of the same.

            (b) X-rays and hospital records (which are certified as being complete records) if otherwise admissible and competent may be introduced without calling the custodian or technician.  Any Party shall have the right to procure from opposing counsel an authorization to examine and obtain copies of hospital records and X-rays involved in litigation.

            (c)  All experts, including doctors and law enforcement personnel, who are to testify at trial, shall be advised by counsel to bring their original records and notes to court with them.

            (d)  All fiduciaries shall be prepared to present the originals of all documents or other papers at issue in any hearing.

            (e)  The written reports of the New Hampshire Division for Children, Youth and Families or of any guardian ad litem shall be submitted not later than at the commencement of the hearing for which it is submitted.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 09/30/1999

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 63, with modifications, in conjunction with Probate Court Rule 13, with modifications, as proposed Probate Court Rule 63.

2.         The Committee omitted paragraphs A, B, C, D, H and I from Superior Court Rule 63, since the substance of each paragraph is inapplicable in the Probate Court context.

 

 

 

 

RULE 63-A:  PROCEDURE DURING TRIAL - Offers of Proof

 

            A probate judge or probate master may receive evidence by an Offer of Proof, whenever appropriate and within the discretion of the court.  Whenever a court exercises discretion to receive evidence by an Offer of Proof, the court shall inform all parties that by making an Offer of Proof, the proffering party represents to the court that a witness is present in the courtroom and can testify under oath in accordance with the Offer of Proof.  Before receiving evidence by an Offer of Proof, the court shall inform all parties of the following procedures:

 

            An Offer of Proof as to the testimony of a witness shall be received only if that witness is present in the courtroom at the time of the Offer.

 

            Any witness whose testimony is presented by an Offer of Proof may be cross-examined by the opposing party, subject to the usual authority of the court.

 

            If a witness' credibility is challenged, or for any other reason within the discretion of the court, the court may question the witness or require that the witness' proof be presented from the witness stand.

 

An Attorney or Pro Se Party making an Offer of Proof represents to the court that the Attorney or Pro Se Party has examined the witness or document that is the subject of the Offer.  Through that examination, the attorney reasonably believes, taking into account all that the Attorney or Pro Se Party knows about the case, that the evidence is not false; the evidence is admissible through a witness who can testify under oath to establish the purpose for which it is offered; and the evidence is not offered for a frivolous purpose.

 

In an ex parte proceeding, an attorney making an Offer of Proof also represents to the court that the Offer of Proof is accompanied by a statement under oath of all material facts known to the attorney to enable the court to make an informed decision as to the issues presented.

 

            In proceedings where the Rules of Evidence either do not apply or are relaxed within the discretion of the court, evidence may be received by an Offer of Proof without the presence of the witness in court if that same evidence could be received by the court without the necessity of a witness' testimony under oath to introduce the evidence.

 

 

Rev. 1 - 05/15/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Administrative Order 15, with modifications, in conjunction with, Probate Court Administrative Order 1998-01, as proposed Probate Court Rule 63-A.

2.         The Committee added the title "Procedure During Trial" and the heading "Offers of Proof," to clarify the topic of the rule.

 

 

 

 

RULE 64:  PROCEDURE DURING TRIAL - Copies to Court

 

            The Attorney or Pro Se Party shall seasonably furnish for the convenience of the Court copies of all exhibits offered in evidence.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 09/30/1999

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 64, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 64.

2.         The Committee replaced "counsel" with "[t]he Attorney or Pro Se Party."

3.         The Committee added the heading "Copies to Court," to clarify the topic of the rule.

 

 

 

 

RULE 64-A:  [Reserved for Future Use]

 

 

FINAL - 09/15/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 64-A addresses juror notetaking.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 64-A for future use.

 

 

 

 

RULE 65:  PROCEDURE DURING TRIAL - Examination of Witness

 

            Only one Attorney for each Party, or if Pro Se, only the Pro Se Party shall be permitted to examine a witness.

 

 

Rev. 1 - 11/19/1996

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 65, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 65.

2.         The Committee the references to Pro Se Party to be consistent with Probate Court practice.

3.         The Committee added the heading "Examination of Witness," to clarify the topic of the rule.

 

 

 

 

RULE 66:  PROCEDURE DURING TRIAL - Objections

 

            When stating an objection, the objecting party shall state only the basis of the objection (e.g., "leading," "non-responsive," or "hearsay"), provided that upon request, counsel shall be permitted a reasonable opportunity to present additional argument or grounds for the objection.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 12/10/1996

Rev. 4 - 01/06/1997

Rev. 5 - 01/21/1997

Rev. 6 - 09/30/1999

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 66, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 66.

2.         The Committee omitted the phrase "to approach the bench to elaborate" since its reference is more applicable to Superior Court jury trials.

3.         The Committee omitted paragraph B of Superior Court Rule 66 which addresses motions to dismiss, motions for mistrial and offers of proof being made at the bench, since the paragraph is more applicable to Superior Court jury trials.

4.         The Committee added the heading "Objections," to clarify the topic of the rule.       

 

 

 

 

RULE 67:  PROCEDURE DURING TRIAL - Witness Re-examination

 

            Unless permitted by the Court, after cross-examination, a witness may not be re-examined by the Party calling the witness, except as may be necessary to explain answers on cross-examination, and except as to new matters elicited by cross-examination regarding which the witness has not previously been examined.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 12/10/1996

Rev. 4 - 01/06/1997

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 67, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 67.

2.         The Committee added "after cross-examination" to clarify when a witness may not be re-examined.

3.         The Committee replaced the phrase "unless by leave of Court" with "unless permitted by the Court" for consistency.

4.         The Committee replaced "examined in chief" with "previously examined."

5.         The Committee added the heading "Witness Re-examination," to clarify the topic of the rule.

 

 

 

 

RULE 68:  PROCEDURE DURING TRIAL - Criminal Record

 

            If a Party plans to use or refer to any criminal record, for the purpose of attacking or affecting the credibility of a witness, the Pro Se Party or Attorney shall first furnish a copy of same to the opposing Party or Attorney, and then obtain a ruling from the Court as to whether the witness may be questioned with regard to any conviction for credibility purposes.

            Evidence of a conviction under this rule shall not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the witness was represented by counsel at the time of the conviction unless counsel was waived.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 12/10/1996

Rev. 4 - 01/06/1997

Rev. 5 - 01/21/1997

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 68, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 68.  The Committee recognized that although this rule is more applicable to jury trials, it may still have some utility in the Probate Court context.  

2.         The Committee addressed the ambiguity of "any prior criminal record" as it relates to admissible evidence for the impeachment of a witness. The Committee decided that the Court would refer to the New Hampshire Rules of Evidence should this issue arise in a proceeding.  In addition, the Committee decided to delete "prior" as it modifies "criminal record," as it was deemed redundant.

3.         The Committee replaced any reference to "Party or witness" with "witness" since the term encompasses "Party."

4.         The Committee added the heading "Criminal Record," to clarify the topic of the rule.

 

 

 

 

RULE 69:  PROCEDURE DURING TRIAL - Recall of Witness

 

            After a witness has been dismissed from the stand, the witness shall not be recalled by the same Party, without permission of the Court.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 69, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 69.

2.         The Committee added the phrase "by the same Party" to indicate by whom the witness may not be recalled.  The longevity of this rule in the Superior Court suggests that it is understood that the non-examining Party may recall the witness as part of his or her presentation of the evidence.

3.         The Committee added the heading "Recall of Witness," to clarify the topic of the rule.

 

 

 

 

RULE 70:  PROCEDURE DURING TRIAL - Presentation of Case

 

            In all trials, the Petitioner shall put in the whole case before resting and shall not thereafter, except by permission of the Court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the Respondent shall, before resting, put in the whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 70, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 70.

2.         The Committee added the heading "Presentation of Case," to clarify the topic of the rule.

 

 

 

 

RULE 71:  PROCEDURE DURING TRIAL - Opening and Closing Statements

 

            Opening and closing statements may be allowed within the discretion of the Court. Opening statements shall not be argumentative and shall be no longer than fifteen (15) minutes each, and closing statements shall be limited to thirty (30) minutes each, unless otherwise permitted by the Court. 

 

 

Rev. 1 -10/30/1996

Rev. 2 - 11/19/1996

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 71, with modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 71.

2.         The Committee decided to adopt the first sentence to reflect that opening and closing statements are within the Court's discretion.

3.         The Committee decided that fifteen minutes for opening statements and thirty minutes for closing statements were sufficient amounts of time in the Probate Court context.

4.         The Committee omitted the phrase "in advance" following "unless otherwise permitted by the Court."  The Committee decided that permission to exceed the prescribed time limitations for opening and closing statements could be given at any time.

5.         The Committee omitted the last sentence, since it referred to an Attorney reading an excerpt of testimony to the jury.

6.         The Committee added the heading "Opening and Closing Statements," to clarify the topic of the rule.

 

 

 

 

RULE 72:  PROCEDURE DURING TRIAL - Requests and Memoranda

 

            All requests for findings of fact and rulings of law and written memoranda of law shall be submitted no later than a time directed by the Court at the structuring conference. If there is no time set forth in the order at the structuring conference, then all requests for findings of fact and rulings of law and memoranda of law must be submitted to the Court no later than the close of the evidence. Nevertheless, it is within the Court's discretion to allow requests and memoranda to be submitted to the Court at a later time.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 12/10/1996

Rev. 4 - 01/06/1997

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 72, with  modifications, in conjunction with current Probate Court Rule 14, as proposed Probate Court Rule 72.

2.         The Committee revised the rule in order to require that requests and memoranda be filed at a time directed by the Court and if no time is designated, then the filings must occur no later than the close of the evidence. In addition, the Committee stated that it is within the Court's discretion to allow the filing of such documentation at a later time.

3.         The Committee omitted any reference to jury cases and criminal cases, since they are inapplicable in the Probate Court context.

4.         The Committee added the heading "Requests and Memoranda," to clarify the topic of the rule.

 

 

 

 

RULE 72-A:  PROCEDURE AFTER TRIAL - Decisions

 

            In the absence of other express court order, rule, or statutory provision, justices and masters of the Probate Court shall file with their respective Registers decisions in all pending matters within sixty (60) days of the final date of their submission to them for determinations.  The Registers shall keep a list of all decisions pending longer than sixty (60) days.  Justices, masters and Registers shall report to the Administrative Justice all decisions pending for more than sixty (60) days.  Upon written request of a justice or master, the Administrative Justice may extend the deadline.

 

 

FINAL - 06/19/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Administrative Order 1994-04, with modifications, as proposed Probate Court Rule 72-A.

2.         The Committee added the title "Procedure After Trial" and the heading "Decisions," to clarify the topic of the rule.

 

 

 

 

RULE 73:  [Reserved for Future Use]

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 12/10/1996

Rev. 4 - 01/06/1997

Rev. 5 - 01/21/1997

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court 73 addresses motions to set aside a verdict.  Proposed Probate Court Rule 59-A more adequately covers motions for reconsideration in the Probate Court.  The Committee decided to reserve proposed Probate Court Rule 73 for future use.

 

 

 

 

RULE 74:  PROCEDURE AFTER TRIAL - Final Judgment

 

            In all actions in which an order or decree is entered or in which an action is dismissed, or in which any Motion is acted upon after order or decree, all appeals shall be deemed waived and judgment shall become final as follows in subparagraphs (a) or (b), unless the Court has otherwise ordered, unless a notice of an appeal has been filed with the Superior Court pursuant to RSA 547:11-d, or unless a notice of appeal has been filed with the Supreme Court pursuant to its Rule 7:

            (a) where no Motion, or an untimely filed Motion, has been filed after order or decree, on the thirty-first day from the date on the Register's written notice that the Court has made such order, decree or dismissal; or

            (b) where a timely filed Motion has been filed after order, decree or dismissal, on the thirty-first day from the date on the Register's written notice of the Court's action on the Motion.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 11/19/1996

Rev. 3 - 12/10/1996

Rev. 4 - 01/21/1997

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 74, with modifications, as proposed Probate Court Rule 74.

2.         The Committee replaced any reference to "verdict and decree" with "order or decree."

3.         The Committee replaced the phrase "final judgment shall be entered as follows" with "judgment shall become final as follows in subparagraphs (a) or (b)."

4.         The Committee replaced any reference to "entry, grant or dismissal" with "order, decree or dismissal."

5.         The Committee omitted the last paragraph of the Superior Court Rule 74, as it is not applicable in the Probate Court context.

6.         The Committee added the reference to RSA 547:11-d to account for the possibility of a notice of an appeal being filed with the Superior Court.

7.         The Committee added the heading "Final Judgment," to clarify the topic of the rule.

 

 

 

 

RULE 75:  PROCEDURE AFTER DEFAULT

 

            In all defaulted cases, judgment may be entered at such time and after any hearing that the Court may order.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 12/10/1996

Rev. 3 - 01/06/1997

FINAL - 01/21/1997

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 75, with modifications, as proposed Probate Court Rule 75.

2.         This rule acknowledges the fact that hearings may often be required after default.

3.         The Committee replaced the title “Procedure after Trial" with "Procedure after Default,” to clarify the topic of the rule.

 

 

 

 

RULE 76:  APPEALS TO SUPERIOR COURT

 

            Appeals to Superior Court shall be in accordance with RSA 547:11-d.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 12/10/1996

Rev. 3 - 12/02/1997

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 76 was repealed in 1982.

2.         The Committee eliminated current Probate Court Rule 20 due to the repeal of RSA 567:A-10 and replaced it with proposed Probate Court Rule 76.

 

 

 

 

RULE 77:  [Reserved for Future Use]

 

 

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 77 addresses the filing of evidence of indebtedness when a verdict is rendered upon a negotiable instrument.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 77 for future use.

 

 

 

 

RULE 77-A:  EXCEPTIONS UNNECESSARY

 

            Formal exceptions to non-evidentiary rulings or orders of the Court are unnecessary, and for all purposes for which an exception has heretofore been necessary it is sufficient that a Party, at or before the time the ruling or order of the Court is made or sought, makes known to the Court by pleading or orally on the record the action which the Party desires the Court to take or the Party’s objection to the action requested by a Party opponent, provided that in each instance the Party has informed the Court of the specific factual or legal basis for the Party's position.  Objections to evidentiary rulings are governed by N. H. R. Ev. 103.

 

 

Rev. 1 - 10/30/1996

Rev. 2 - 12/10/1996

Rev. 3 - 01/06/1997

Rev. 4 - 01/21/1997

Rev. 5 - 05/27/1998

Rev. 6 - 07/22/1998

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 77-A, with modifications, in conjunction with current Probate Court Rule 44, as proposed Probate Court Rule 77-A.

 

 

 

 

RULE 77-B:  [Reserved for Future Use]

 

 

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 77-B deals with communication with jurors. As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 77-B for future use.

 

 

 

 

RULE 78:  PHOTOGRAPHING, RECORDING AND BROADCASTING

 

            (a) Except by order of the Court, no Person shall take any photograph, make any recording, or make any broadcast by radio, television or other means in the course of any proceeding in the courtroom.

            (b) Official court reporters and authorized recorders are not prohibited by section (a) of this rule from making voice recordings for the sole purpose of discharging their official duties.

            (c) A Party may request that any probate proceedings be recorded.  Such request shall be made in writing to the Court no later than ten (10) days prior to the proceeding.  Any denial of a request for recording shall include the reason(s) supporting the denial.  A request for recording, not timely filed, may be granted within the discretion of the Court.

            (d) For all purposes, including Supreme Court Rules 13-15, the official record of a recorded probate court proceeding shall be the printed transcript of the proceeding as prepared by an approved transcriber or stenographer at the request of the Register.

 

 

Rev. 1 - 12/10/1996

Rev. 2 - 01/06/1997

Rev. 3 - 01/21/1997

Rev. 4 - 11/05/1998

FINAL - 04/19/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 78, with modifications, in conjunction with current Probate Court Rule 15, and Administrative Orders 1994-02 and 1995-01, with modifications, as proposed Probate Court Rule 78.

2.         The Committee reduced the current "fourteen (14)" days to make requests for a recording in Administrative Order 1995-01 to "ten (10)" days to be consistent with other rules addressing proceedings.

3.         Superior Court Rule 78 promulgates specific guidelines that pertain to media personnel.  The Committee acknowledged that some of the guidelines may be appropriate in the Probate Court context.  In such cases, the Court-promulgated guidelines found in Superior Court Rule 78 should be consulted.

 

 

 

 

RULE 78-A:  TRANSCRIPTS

 

  (a) Transcripts for Appeal.  The Party(ies) shall advance the estimated cost of the transcript as ordered by the Court.  Upon receipt of the required advance payment, the Register shall direct the transcriber or stenographer to proceed with the transcription.

  (b) Request for Excerpts.  During the course of a trial, either party may request to have parts of the evidence transcribed for use during the trial.  The furnishing of a transcript or excerpts from the evidence is to be done under the direction of the probate judge or probate master.

  (c) Transcripts Required for Other Than Appeal.  In the event there is a Motion for a transcript of a proceeding, either partial or complete, by a Party to the proceeding or other interested Persons, for purposes other than appeal, that purpose shall be stated in the Motion.

            When a Motion for transcript is granted, any other Party desiring a copy shall notify the Court within ten (10) days of the Register's notice.  After ten (10) day period has elapsed, the Register shall proceed in the usual manner to compute the estimated cost of the transcript and require the Party(ies) to advance this amount.  Upon receipt of the required advance payment, the Register shall direct the transcriber or stenographer to proceed with the transcription.

            When completed, if the transcriber or stenographer's bill exceeds the estimated payment, the Register shall collect the additional cost before releasing the transcript(s).  The original shall be retained by the Register.

  (d) Transcript Order by Court, Master or Referee.  If a complete or partial transcript of any proceeding is ordered by a probate judge or probate master, the transcriber or stenographer shall prepare an original and such copies as ordered.  The Register's office shall provide the probate judge or probate master with a copy and retain the original and any other copies.  Neither, the original or any copy shall be defaced in any way so that they may be used in the event of subsequent appeal.

  (e) Special Circumstances.  Any and all of the outlined procedures for preparation of transcripts may be amended at the discretion of the Court in special circumstances; e.g., when there is a limited time available for processing an appeal, etc.

 

 

Rev. 1 - 04/19/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Administrative Rule 3.1, with modifications, as proposed Probate Court Rule 78-A.

2.         The Committee added the title "Transcripts," to clarify the topic of the rule.

 

 

 

 

RULE 78-B:  DUPLICATION OF AUDIO TAPES

 

            (a) Upon receipt of a Motion to the Court for a duplicate audio tape of a recorded probate court proceeding, the probate judge or probate master who presided over the proceeding shall either (1) direct the Register to release a copy of the audio tape to the person, or (2) deny the Motion.  Any denial of a Motion for a duplicate audio tape shall include a statement of reason(s) supporting the denial.

            (b) In the case of any probate court proceeding made CONFIDENTIAL by New Hampshire statute, case law, or court order, no duplicate audio tape shall be released, except to a Party to the proceeding or to an Attorney for a Party to the proceeding.  In such cases, the Party or Attorney shall sign a "Receipt for Duplicate Audio Tape of Confidential Probate Proceeding."

 

                                                         STATE OF NEW HAMPSHIRE

 

__________________ COUNTY                                                PROBATE COURT

 

                                                IN RE: __________________________

                                                   DOCKET NUMBER:_____________

 

                                                RECEIPT for DUPLICATE AUDIO TAPE of

                                               CONFIDENTIAL PROBATE PROCEEDING

 

I acknowledge receipt of a duplicate audio tape of a CONFIDENTIAL probate proceeding in this case.

 

As a condition of the receipt of this duplicate audio tape, I shall take all reasonable actions to ensure that the CONFIDENTIALITY of the proceeding, including the CONFIDENTIALITY of this audio tape, is preserved.  Those actions shall include the following:

  I shall not reproduce this audio tape in any form.

  I shall not release this audio tape, or a copy of this audio tape, to anyone.

  I shall not allow anyone to listen to this audio tape, except for a Party to this proceeding, Attorney for a Party to this proceeding, or a Person with a court order authorization to listen to this audio tape.

 

DATE:_________________     SIGNATURE________________________

 

                (c) The fee for each duplicate audio tape shall be $25.00, payable to the Register.

 

 

FINAL - 5/15/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted the proposed amendments to Superior Court Rule 78, with modifications, as proposed Probate Court Rule 78-B.

2.         The Committee replaced any reference to "Superior Court" with "Court."

3.         The Committee replaced any reference to "Clerk" with "Register."

4.         The Committee discussed the release of audio tapes of confidential proceedings and decided to allow their release to a Party to the proceeding or to an Attorney for a Party to the proceeding.  The Committee added a "Receipt for Duplicate Audio Tape of Confidential Probate Proceeding" form to be signed by the Party receiving the duplicate audio tape.

5.         The Committee added the title "Duplication of Audio Tapes," to clarify the topic of the rule.

 

 

 

 

RULE 79:  INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Procedure

 

            Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, the moving Party shall file with the Register the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the Court has signed the statement, the moving Party shall file the number of copies required by the rules of the Supreme Court with the clerk thereof.

            After a decision on the merits, all appeals shall be deemed waived and judgment shall become final on the thirty-first day from the date on the Register’s written notice of the decision, unless the party aggrieved enters a notice of appeal in the Supreme Court within thirty (30) days from the date on the Register’s notice, pursuant to Supreme Court Rule 7, and files the number of copies required by the rules of the Supreme Court to the clerk thereof.  The definition of "decision on the merits" includes decisions on Motions made after an order, opinion, or decree.  Timely filed post-trial Motions stay the running of the appeal period.

            Whenever any notice of appeal is filed pursuant to the provisions of RSA 567-A, the appealing Party shall give notice thereof forthwith to all Parties or to their Attorneys in accordance with rules of the Supreme Court.

 

 

Rev. 1 - 12/10/1996

Rev. 2 - 01/06/1997

Rev. 3 - 01/21/1997

Rev. 4 - 02/11/1997

Rev. 5 - 05/27/1998

Rev. 6 - 06/17/1998

Rev. 7 - 07/22/1998

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 79, with modifications, in conjunction with the first paragraph of current Probate Court Rule 16; current Probate Court Rule 42; and paragraphs A and B of current Probate Court Rule 43, as proposed Probate Court Rule 79.

2.         The Committee replaced “Counsel” with “the appealing Party.”

3.         The Committee replaced any reference to "mail" with "file," since it is permissible to hand-deliver appeals to the Clerk of the Supreme Court.  The Committee decided that “file” more accurately described the required action without limiting the delivery methods available to an appealing Party.

4.         The Committee included paragraph B of current Probate Court Rule 43 and current Probate Court Rule 42 in order to cover all appeal processes in this rule. 

5.         The Committee replaced “provided” with “required” in the first and third paragraphs when referring to rules of the Supreme Court.

6.         The Committee omitted “when a question of law is to be transferred” and “of the Court’s decision that aggrieves the party“ in the second paragraph of proposed Probate Court Rule 79, for clarity.

7.         The Committee replaced the title "Transfer of Cases to the Supreme Court" with "Interlocutory Transfers and Appeals to the Supreme Court" and added the heading "Procedure," to clarify the topic of the rule.

 

 

 

 

RULE 80:  INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Transcripts

 

            When the Supreme Court orders that a transcript be prepared, if a question of law is transferred by appeal, the appealing Party shall advance the estimated cost of the transfer, and the expense of such transfer shall be taxed in the appealing Party's bill of costs if the appealing Party shall prevail; but if transferred by virtue of an agreement signed by the Parties or otherwise without ruling, such expense shall be advanced as the Court, within its discretion, may rule that justice requires.

            The transcriber or stenographer shall transcribe the original and two copies of all the oral proceedings except opening statements and arguments, unless otherwise ordered by the Supreme Court.

            After determination of what is to be transcribed as provided by these rules and the Supreme Court rules, the Clerk of the Supreme Court shall notify the Party liable therefor of the estimated cost to that Party at the prevailing per page rate for the original and each copy thereof, and shall notify that Party to pay the estimated cost to the Register within fifteen (15) days from the date of the notice; otherwise, that Party’s appeal shall be deemed waived;  or if it is an agreed case or if otherwise transferred without ruling, the action shall be dismissed unless the other Party will advance such expense within fifteen (15) days after notice, in which event the other Party may tax it as costs if the other Party prevails.  Upon receipt of the required advance payment, the Register shall notify the transcriber or stenographer to proceed with the transcription.

            The oral proceedings of the trial shall not be transcribed by the transcriber or stenographer in advance of decree unless the Court rules that justice so requires.  In the event that such prior transcription is ordered, the transcriber or stenographer shall prepare not less than the typewritten original and two copies thereof and the Court shall determine the apportionment of the cost thereof.

 

 

Rev. 1 - 12/10/1996

Rev. 2 - 01/06/1997

Rev. 3 - 01/21/1997

Rev. 4 - 05/27/1998

Rev. 5 - 07/22/1998

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 80, with modifications, in conjunction with the second paragraph of current Probate Court Rule 16 and current Probate Court Rule 45, with modifications, as proposed Probate Court Rule 80.

2.         The Committee omitted “[i]n cases tried by the Court without jury or by a master or referee,” since it is not applicable in the Probate Court context.

3.         The term “taxed” as used in this Rule is a term of art that means “to charge” or “assess.”  Taxation of costs is discussed in proposed Probate Court Rule 87.

4.         Although Rule 15(3) of the New Hampshire Supreme Court Rules excludes medical testimony from transcripts, the Committee deemed such testimony relevant in the Probate Court context and decided that it should be included in transcripts.

5.         The Committee adopted Superior Court Rule 80, with modifications, as proposed Probate Court Rule 80.

6.         The Committee replaced the title "Transfer of Cases to the Supreme Court" with "Interlocutory Transfers and Appeals to the Supreme Court" and added the heading "Transcripts," to clarify the topic of the rule.

 

 

 

 

RULE 81:  MATTERS BEFORE MASTERS AND REFEREES

 

            Retired Judges sitting as referees shall have the powers set forth in RSA 547:19-c and masters shall have the powers set forth in RSA 547:37.

 

 

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee drafted a new proposed Probate Court Rule 81.  Superior Court Rule 81 and current Probate Court Rules 17 and 18 were not followed, as they were inconsistent with RSA 547:19-c and 547:37, the statutes that deal with referees and masters.

2.         The Committee omitted any reference to "auditors," since "auditors" is not found within RSA 547:19-c or RSA 547:37.

 

 

 

 

RULE 82:  MATTERS BEFORE MASTERS AND REFEREES - Non-compliance

 

            If either Party neglects or refuses to appear or to render an account, or produce any books and papers or answer on oath proper interrogatories, the master or referee shall certify the fact to the Court, and the Court shall take such action as justice may require.

 

 

Rev. 1 - 11/5/1998

FINAL - 07/07/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court 82, with modifications, as proposed Probate Court Rule 82.

2.           The Committee omitted any reference to "auditors," since "auditors" is not found within RSA 547:19-c or RSA 547:37.

3.         The Committee added the heading "Non-compliance," to clarify the topic of the rule.

 

 

 

 

RULE 83:  MATTERS BEFORE MASTERS AND REFEREES - Amendments and Assessment of Costs

 

            In actions sent to a master or referee, the hearing shall proceed according to the rules of law or equity, as the case may be, and the practice in Court.  The master or referee may allow amendments in the same manner and to the same extent as if the action were tried in Court; and, when amendments are so allowed, the master or referee shall report such facts to the Court.  The master or referee shall certify the costs of each party in the hearing.

 

 

Rev. 1 - 11/05/1998

FINAL - 05/09/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court 83, with modifications, as proposed Probate Court Rule 83.

2.           The Committee omitted any reference to "auditors," since "auditors" is not found within RSA 547:19-c or RSA 547:37.

3.         Amendments allowed by a master or referee are not limited to the hearing in which they were granted.  The Committee, therefore, omitted "for the purposes of the hearing before him" from the second sentence of Superior Court Rule 83.

4.         The Committee omitted "with reference thereto as will enable the Court to revise the discretion exercise by him, if either party so requests" from the second sentence of Superior Court Rule 83.

5.         The Committee omitted any references to the master's fees and expenses, as they are not applicable in the Probate Court context.

6.         The Committee added the heading "Amendments and Assessment of Costs," to clarify the topic of the rule.

 

 

 

 

RULE 84:  MATTERS BEFORE MASTERS AND REFEREES - Approval by Probate Judge

 

 

            The report of a master or referee to whom a matter has been referred will be presented to the probate judge for approval and order.  The decision thereafter shall be sent in accordance with Rule 61 and the Parties shall preserve their rights as though the case were originally heard before a probate judge.

 

 

Rev. 1 - 11/05/1998

Rev. 2 - 05/09/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court 84, with modifications, as proposed Probate Court Rule 84.

2.         The Committee omitted any reference to "auditors," since "auditors" is not found within RSA 547:19-c or RSA 547:37.

3.         The Committee added the heading "Approval by Probate Judge," to clarify the topic of the rule.

 

 

 

 

RULE 85:  MATTERS BEFORE MASTERS AND REFEREES - Questions of Law Reported

 

            If any question of law shall arise at the hearing before the master or referee, that question shall, at the request of either party, appear in the master or referee's report, together with a ruling thereon.

 

 

Rev. 1 - 11/05/1998

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court 85, with modifications, as proposed Probate Court Rule 85.

2.         The Committee omitted any reference to "auditors," since "auditors" is not found within RSA 547:19-c or RSA 547:37.

3.         The Committee added the heading "Questions of Law Reported," to clarify the topic of the rule.

 

 

 

 

RULE 85-A:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 85-A deals with appointments of special masters.  As the Probate Court uses masters and referees pursuant to RSA 547:19-c and RSA 547:37, the Committee decided to reserve proposed Probate Court Rule 85-A for future use.

 

 

 

 

RULE 86:  TRUSTEES - Disclosure

 

            The disclosure of all trustees served before entry of the petition must be filed within sixty (60) days after the Return Day at which the action is returnable, and, in the case of trustees served pursuant to authority to make additional attachments, within sixty (60) days following the date of service upon such trustees.  Upon failure of the Petitioner so to file such disclosure, the trustees shall be discharged upon Motion.  The Court, upon Motion and for sufficient cause shown by affidavit, may extend the time for taking the disclosure.  Trustees will be allowed costs as a Party until the question of their liability, if they enter an Appearance.

 

 

Rev. 1 - 06/07/2000

FINAL - 06/19/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 86, with modifications, as proposed Probate Court Rule 86.

2.         The Committee replaced "writ" with "petition."

3.         The Committee added "of the Petitioner" in the second sentence to clarify the wording of the rule.

4.         The Committee added the heading "Disclosure," to clarify the topic of the rule.

 

 

 

 

RULE 87:  TAXATION OF COSTS

 

  (a) Costs.  Costs shall be allowed as of course to the prevailing Party as provided by these rules, unless otherwise provided by statute or the Court otherwise directs.

  (b) Taxation of Costs.  The Party claiming costs shall file with the Register an itemized, verified bill of costs.  The Register shall revise the verified bill of costs to conform to these rules.  Allowable costs are set forth in subparagraph (c).  If a Party objects to any costs allowed or not allowed by the Register, such Party may by Motion request that the Court review the action of the Register.  Any Party aggrieved by the Court's order concerning costs may appeal therefrom within thirty (30) days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

  (c) Allowable Costs.  The following costs shall be allowed to the prevailing Party: Court fees, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The Court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

 

 

Rev. 1 - 01/21/1997

Rev. 2 - 02/11/1997

Rev. 3 - 05/10/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 87, with modifications, in conjunction with current Probate Court Rule 51, as proposed Probate Court Rule 87.

2.         The Committee replaced any reference to “Clerk” with “Register.”

3.         The Committee replaced any reference to "presiding justice" with "Court."

4.         The Committee replaced the third sentence of subparagraph (b) with "Allowable costs are set forth in subparagraph (c)."

5.         The Committee omitted from the title "In Civil Proceedings," to clarify the topic of the rule.

 

 

 

 

RULE 88:  FEES AND EXPENSES - Fiduciary and Attorney

 

            Fees and expenses of Fiduciaries and Attorneys shall be subject to the approval of the Court.  In all cases, fees and expenses shall be reasonable for the work, responsibility, and risk.  Factors used to determine the reasonableness of a fee may include the time and labor required, the size of the estate, the requisite skill, the customary fee, a fee agreement, the results obtained, time limitations, and the length of the professional relationship.

 

 

Rev. 1 - 04/22/1998

Rev. 2 - 05/27/1998

Rev. 3 - 06/17/1998

Rev. 4 - 05/31/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 88 was repealed in 1990.  The Committee adopted current Probate Court Rule 36, with modifications, as proposed Probate Court Rule 88.

2.         The Committee added the second and third sentences to provide guidelines to practitioners for determining the amount of fees which may be charged. 

3.         Estate fees shall be determined in accordance with the principles set forth in In re Estate of Rolfe, 136 NH 294 (1992).

4.         The Committee added the title "Fees and Expenses" and the heading "Fiduciary and Attorney," to clarify the topic of the rule.

 

 

 

 

RULE 89:  FORMAL PROOF OF HIGHWAY WAIVED UNLESS DEMANDED

 

            In any case in which a road or a way is alleged to be a public highway, a Party shall notify the opposing Party or that Party's Attorney at least ten (10) days prior to trial if said highway must be formally proved; otherwise, the need to formally prove said highway will be deemed to be waived.

 

 

Rev. 1 - 01/21/1997

Rev. 2 - 02/11/1997

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 89, with modifications, as proposed Probate Court Rule 89.

2.         Although the Committee was unsure of its applicability, the rule was adopted since the Probate Court handles real estate issues.

 

 

 

 

RULE 90:  ADOPTION - Personal Attendance

 

            The Petitioner(s) and the individual to be adopted shall appear at the hearing on the adoption, unless the presence of either is excused by the Court for good cause shown.

 

 

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 90 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 38, with modifications, in conjunction with RSA 170-B:15, I, as proposed Probate Court Rule 90.

3.         The Committee replaced the title "Fees in Criminal Proceedings" with "Adoption" and added the heading "Personal Attendance," to clarify the topic of the rule.

 

 

 

 

RULE 91:  ADOPTION OF FOREIGN-BORN CHILD

 

  A.  Unless the Court orders otherwise, for purposes of RSA 170-B:6, VI, any one of the following documents, which indicate that the child is a foreign adoptee (IR-3 status) or the subject of a foreign guardianship awarded for the purpose of the child's adoption in the United States (IR-4 status), will be accepted by the Court as evidencing that the parental rights of the parents of the proposed adoptee have been voluntarily or involuntarily terminated by the proper authorities in a foreign country:

            1.  An attested or certified copy of the child's actual Visa (Form OF-230), indicating either IR-3 or IR-4 status, issued by the U.S. Consulate in the proposed adoptee's country of birth.

            2.  An attested or certified copy of the proposed adoptee's alien registration card indicating either IR-3 or IR-4 status.

            3.  A certified copy of the proposed adoptee's passport issued in his/her country of birth, with the U.S. Visa stamp affixed indicating either IR-3 or IR-4 status.

  B.  The attestation or certification of the copies deemed acceptable under the preceding section shall be by a notary public commissioned under the laws of the jurisdiction where the act occurs and shall be substantially in the following form:

"A true copy attest

                                    ________________________________

                                    Notary Public

                                    My Commission Expires:__________

                                    Affix Notarial Seal Here"

or, alternatively,

            "I hereby certify that I have personally examined and compared this copy against the original instrument and find this copy to be a true copy of the original in every respect save this certification.

                                    _____________________________

                                    Notary Public

                                    My Commission Expires:_________

                                    Affix Notarial Seal Here"

 

 

Rev. 1 - 10/26/1998

Rev. 2 - 03/03/1999

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 91 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 38-A, with modifications, as proposed Probate Court Rule 91.

3.         The Committee omitted and reference to "Probate" preceding "Court."

4.         The Committee replaced the title "Appointment of Counsel in Criminal Cases" with "Adoption of Foreign-Born Child," to clarify the topic of the rule.

 

 

 

 

RULE 91-A:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 91-A addresses criminal proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 91-A for future use.

 

 

 

 

RULE 92:  ADOPTIONS - Proof of Birth, Guardianship Pending 

 

            Upon filing a petition for adoption, the Petitioner shall file, or cause to be filed, the original or a certified copy of the proposed adoptee's birth certificate.  If, at the time of filing, a birth certificate has not been issued, the Petitioner may file a certificate or record of live birth, or a similar document verifying the proposed adoptee's birth.

            Once the petition for adoption, the required proof or verification of the proposed adoptee's birth, and any required consent to the adoption has been filed, the Register may, upon the Petitioner's written request, issue a written confirmation of filing which shall be in the following form:

 

                                    STATE OF NEW HAMPSHIRE

COUNTY OF __________________                       PROBATE COURT

 

                                    CONFIRMATION OF FILING

 

"This will serve to officially confirm that there is on file with the Registry of Probate a petition for the adoption of ________________ by _____________  _____________, as well as a certified copy of the birth certificate or other verification of the live birth of _________________ and a consent to the adoption, approved by the court, and has been filed by _____________________."

            Where anonymity is required or the parties in interest prefer anonymity, the Petitioners may file a petition for guardianship in order to acquire, and be able to present proof of, proper authority for care, custody, and control of the child preliminary to adoption.  The appointment may be qualified by such conditions as the Court deems proper and consistent with the child's best interests.

 

 

Rev. 1 - 10/26/1998

FINAL - 05/25/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 92 addresses appeals in criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 38-B, with modifications, as proposed Probate Court Rule 92.

3.         The Committee omitted "of Probate" after "Register".

4.         The Committee replaced the title ""Multiple Representation of Criminal Defendants" with Adoptions" and added the heading "Proof of Birth, Guardianship Pending," to clarify the topic of the rule.

 

 

 

 

RULE 93:  PROCESSING AND DISPOSITION OF TERMINATION OF PARENTAL RIGHTS CASES

 

  A. Purpose.  The purpose of this rule is to assure the speedy processing of petitions for the termination of parental rights and to achieve permanent family plans for the children within the scope of RSA Chapter 170-C.  This rule should in no way be considered as superseding constitutional or statutory rights of parties to these proceedings.

  B. Contents of Petition.  A petition for termination of parental rights shall include the following:

            1. The name and place of residence of the Petitioner.

            2. The name, sex, date and place of birth, and residence of the child.

            3. The basis for the Court's jurisdiction.

            4. The relationship of the Petitioner to the child, or the fact that no relationship exists.

            5. The names, addresses, and dates of birth of the parents.

            6. When the child's parent is a minor, the names and addresses of said minor's parents or guardian of the person.

            7. The names and addresses of the following persons:

                (a) the person having legal custody;

                (b) the guardian of the person:

                        (i)  of the parent, or

                        (ii) of the child;

                (c) any individual acting in loco parentis to the child; or

                (d) the organization or authorized agency having legal custody or providing care for the child.

            8.  The grounds on which termination of the parent-child relationship is sought.

            9.  The names of the authorized agency to whom or to which legal custody or guardianship of the person of the child may be transferred.  

            10. If the petition for termination is filed subsequent to an abuse/neglect proceeding, the names and addresses of the attorneys representing the parents and the names and addresses of any guardian ad litems appointed in the underlying abuse/neglect case.

            11. If the petition is filed by an authorized agency, the name and address of the attorney representing the agency and the name and address of the social worker assigned to the case.

  C. Contents of Notice.  The order of notice provided for in RSA 170-C:7 shall be attached to a copy of the Petition and shall include the following:

            1. The statement that termination of parental rights means the loss of all rights to custody, visitation, and communication with

the child and that if termination is granted, the parent will receive no notice of future legal proceedings concerning the child.

            2. An explanation of the need to respond immediately to the notice, both to prepare for trial and because important hearings will take place prior to trial.

            3. An explanation of how to find out the time and place of future hearings in the case.

            4. Notice of right to counsel, of the procedure to follow to obtain appointed counsel, and of the role that counsel can play in Court proceedings.

            5. The date, time, and place of the hearing on the petition for termination of parental rights.  The statement that a written Appearance must be filed with the Court on or before the date of the  hearing, or the Respondent/parent may personally appear on the date of the hearing, or be defaulted.

            6. The statement that the failure to appear personally or in writing will waive all rights to a hearing and that the person's parental rights may be terminated at the hearing.

 D.  Notice.  After a Petition has been filed, the Court shall set the time and place for hearing and shall give notice thereof to the Petitioner.

            1. The Petitioner shall cause notice to be given to:

               (a) the Respondent/parent;

               (b) the guardian ad litem and/or guardian of the person of the child;

               (c) the guardian ad litem and/or guardian of the person of any other Party;

               (d) the person having legal custody of the child; and

               (e) any individual standing in loco parentis to the child.

            2. Where the child's parent is a minor, notice shall also be given to the minor's parents or guardian of the person unless the Court is satisfied, in its discretion, that such notice is not in the best interest of the minor and that it would serve no useful purpose.

            3. The Petitioner shall provide notice to the Respondent(s)/parent(s) by personal service.  Where it shall appear impractical to personally serve the Respondent/parent, however, the Court shall, upon Motion of the Petitioner, order service, either by certified mail, return receipt requested (restricted delivery to addressee only), to the Respondent's/parent's last known address, or by publication once a week for two (2) successive weeks in a newspaper of general circulation in the area where that person was last domiciled, or both.

            4. The Petitioner shall include with a motion for notice by publication an affidavit describing the Petitioners efforts to locate and serve the absent parent.

            5. All other parties shall be given notice by regular mail at their last known address.

            6. Pursuant to RSA 170-C:13, costs of giving notice and advertising shall be paid by the Petitioner.

  E.  Initial Hearing.  Should the Respondent/parent enter an Appearance or appear personally, the hearing described in (C)(5) of this rule shall be considered an initial hearing.  At this hearing, the Court shall:

            1. Determine that the Court has jurisdiction.

            2. Assure that all parents have been identified and located, and if there is a unnamed or absent parent, inquire about what efforts have been made to locate that person.

            3. Appoint counsel for the Respondent(s)/parent(s), if necessary.

            4. Address the issue of notice, if necessary.

            5. Order evaluations, if appropriate.

            6. Establish the time and date for a structuring conference.

            7. Address any other matters necessary to expedite the case and to make orders for that purpose.

  F. Structuring Conference.  When an initial hearing is held as a result of an Appearance by the Respondent/parent, a structuring conference shall be scheduled to be held within thirty (30) days after the initial hearing.  At the structuring conference, the Court shall:

            1. Resolve any outstanding discovery disputes.

            2. Identify issues of law and fact for trial.

            3. Assure that all relevant evaluations will be completed prior to the final hearing on the merits.

            4. Resolve any other matters which will simplify or aid the conduct of the final hearing on the merits.

            5. Determine if a pretrial conference will be necessary and  if so, set the time and date.

            6. Set the time and date of the final hearing on the merits and estimate its length.

  G. Pretrial Conference.  A pretrial conference is not mandatory. However, if a pretrial conference is held, it shall be held at a time, within the discretion of the Court, after the structuring conference and before the final hearing on the merits.  At the pretrial conference, the Court shall:

            1. Resolve any remaining issues which would simplify or aid the conduct of the final hearing on the merits, e.g. memoranda of law, admission of documents, admission of reports, etc.

            2. Review the final witness list.

            3. Confirm the date, time, and estimated length of the final hearing on the merits.

  H.  Final Hearing On the Merits.  If the Respondent/parent neither enters an Appearance nor appears personally, the final hearing on the merits shall be conducted in place of the scheduled initial hearing.   If the Respondent/parent enters an Appearance, the final hearing on the merits shall be commenced within 120 days after the structuring conference.  The Court shall set aside sufficient time to avoid interruptions of the final hearing on the merits. In the event a final hearing on the merits cannot be completed within the allotted time, it may be adjourned.  Except for good cause shown, the adjournment shall not exceed fourteen (14) days.

  I. Issuance of Court Order.  The Court shall issue a decision which shall include a disposition no later than thirty (30) days after the date of the final hearing on the merits, or when applicable, the filing of an Affidavit as to Military Service.

            Upon the granting or denial of a petition for termination of parental rights brought by the Division of Children, Youth and Families subsequent to a district court proceeding, the Court shall send notice of the decision to the district court.

            Upon the granting or denial of a petition for termination of parental rights brought by the Division of Children, Youth and Families, the Court shall send notice of the decision to the adoption unit.  If the petition for termination is granted, the Court shall require the Division for Children, Youth and Families social worker to transfer the termination of parental rights case to the adoption unit within ten (10) days of the expiration of the appeal period and send a letter to the Court confirming such transfer.  The Adoption Unit Social Worker shall file an Appearance for purposes of receiving notice for subsequent hearings.

            If, after the final hearing on the merits, the Court does not order a termination of parental rights but finds that the best interest of the child requires substitution or supplementation of parental care and supervision, and orders a guardianship over the child by Division for Children, Youth and Families or an authorized agency, a review hearing shall be scheduled to be held within one (1) year after any Court order granting guardianship is issued, and annually thereafter.

  J. Post-Termination Case Review Hearings.  The guardian ad litem for the child shall continue as such until the child is adopted or the Court discharges the guardian ad litem from further involvement in the case.

            If the Court orders termination of parental rights and grants custody of the child to the Division for Children, Youth and Families for the purpose of placing the child for adoption, a post-termination case review hearing shall be scheduled to be held within ninety (90) days of the Court's order, and every six (6) months thereafter, unless excused by the Court for good cause shown.  If an adoption petition is filed prior to any scheduled post-termination case review hearing, the hearing may be cancelled.

            Within five (5) days prior to the post-termination case review hearing, the Division for Children, Youth and Families shall submit a written status report to the Court.  The Division for Children, Youth and Families shall forward a copy of the status report to the child's guardian ad litem and/or attorney.  The report shall be dated and signed and shall be written by the Division for Children, Youth and Families to include four (4) separate categories, as outlined below:

            1. A description of the agency's progress toward arranging an adoptive placement for the child.

            2. If adopted parents have not already been selected, a schedule and description of the steps taken to place the child for adoption.

            3. A discussion of any special barriers preventing placement of the child for adoption and how they should be overcome.

            4. The projected date for filing a petition for adoption.

            The Court shall make any orders which may be appropriate to achieve permanency. 

  K. Change of Venue.  When the Division for Children, Youth and Families wishes to proceed with adoption proceedings in a county or state other than where the termination occurred, the division may seek a change of venue pursuant to Rule 115.

 

 

Rev. 1 - 03/09/2000

Rev. 2 - 06/05/2000

Rev. 3 - 07/06/2000

Rev. 4 - 07/18/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 93 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted the Guidelines for Processing and Disposition of Termination of Parental Rights Cases, with modifications, in conjunction with the Court Improvement Project Protocols, as proposed Probate Court Rule 93.

3.         The Committee added (B)(10) and (11) based on the Court Improvement Protocols.

4.         The Committee moved "(a) copy of the petition" from the list of contents of notice to the first sentence of (C) addressing Contents of Notice.

5.         The Committee omitted "at which evidence will be taken" in the first sentence of (C)(5) to be consistent with current Probate Court practice.

6.         The Committee added "the statement that" in the beginning of the second sentence of (C)(5) for consistency.

7.         The Committee added (C)(6) to be consistent with current Probate Court practice.

8.         The Committee added (D) addressing notice based on the Court Improvement Protocols.

9.         The Committee replaced "[t]he purpose of this hearing is to" with "[a]t this hearing, the Court shall" to be consistent with the language found in (E) and (F).

10.        The Committee added (E)(1) and (2) based on the Court Improvement Protocols.

11.        The Committee reworded (E)(3) to clarify that only the respondent is entitled to court appointed counsel.

12.        The Committee replaced any reference to "pre-trial" with "structuring."

13.        The Committee omitted "or as soon as possible thereafter as the court's calendar shall permit" and added "scheduled to be held" to be consistent with Probate Court Caseflow Management Time Line.

14.        The Committee added (F)(5) to be consistent with current Probate Court practice.

15.        The Committee replaced "Confirm" with "Set" in (F)(6) to be consistent with current Probate Court practice.

16.        The Committee added (G) addressing pretrial conferences based on the Court Improvement Protocols.

17.        The Committee replaced any reference to "the final termination hearing" with "the final hearing on the merits."

18.        The Committee replaced "the date set forth in guideline (3)(f)" with "in place of the scheduled initial hearing" in the first sentence of (H).

19.        The Committee replaced "sixty (60) days after the pretrial conference" with "120 days after the structuring conference" in the second sentence of (H) to be consistent with Probate Court Caseflow Management Timeline.

20.        The Committee added the last sentence of the first paragraph and the second paragraph of (H) based on the Court Improvement Protocols.

21.        The Committee omitted the paragraph addressing Notification of Adoption, and reworded the last sentence in the second paragraph of Post-Termination Case Review in the guidelines.  The Committee added (K) to address change of venue consistent with proposed Probate Court Rule 115.

22.        The Committee added (I) addressing the issuance of Court order from the Court Improvement Protocols.

23.        The Committee reworded (J) addressing post-termination case review based on the Court Improvement Protocols.

24.        The Committee replaced the title "Appeals in Criminal Proceedings" with "Processing and Disposition of Termination of Parental Rights Cases," to clarify the topic of the rule.

 

 

 

 

RULE 93-A:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         As Superior Court Rule 93-A addresses criminal proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 93-A for future use.

 

 

 

 

RULE 93-B:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 93-B addresses sound recordings of district court proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 93-B for future use.

 

 

 

 

RULE 94:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 94 addresses criminal proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 94 for future use.

 

 

 

 

RULE 95:  CRIMINAL CONTEMPT

 

            (a) Summary Disposition.  A direct criminal contempt may be punished summarily if the Judge certifies that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court.  Oral notice of the conduct observed must be given by the Judge and the contemnor given an opportunity to speak in his or her defense.  The order of contempt shall recite the adjudication and sentence and shall be signed by the Judge and entered of record.  The disposition, when imposed, shall also be entered on a separately numbered State v. (The Contemnor) file.

            (b) Disposition Upon Notice and Hearing.  An indirect criminal contempt shall be prosecuted on notice.  The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such.  The notice shall be given orally by the Judge in open court in the presence of the defendant or, on application of an Attorney for the State or of an Attorney appointed by the Court for that purpose, by an order to show cause or an order of arrest.  The defendant is entitled to admission to bail as provided by statute.  In a proceeding under this subdivision, if the contempt charged involves disrespect to or criticism of a Judge, that Judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.  Upon a verdict or finding of guilt, the Court shall enter an order fixing the punishment.

 

 

FINAL  - 01/21/1997

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 95, with modifications, as proposed Probate Court Rule 95.

2.         The Committee replaced any reference to "Justice" with "Judge."

 

 

 

 

RULE 96:  WILLS - Filed without Administration

 

            In the case of testacy, if there is no estate to be administered, a will may be filed and recorded without taking out administration, provided that a certified copy of a death certificate is filed with the Register.  No other documents will be required when a will is filed without administration.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 03/25/1998

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 96 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 23, with modifications, in conjunction with Probate Court Procedure Bulletin 1999-01, as proposed Rule 96.

3.         The Committee replaced “proved” with “filed” preceding the words “and recorded”.

4.         The Committee added the second sentence to clarify that only a will and death certificate are required when filing a will without administration.

5.         The Committee replaced the title "Requests for Continuances or Postponements" with "Requests for Continuances or Postponements" with “Wills” and added the heading "Filed without Administration," to clarify the topic of the rule.

 

 

 

 

RULE 96-A:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 96-A addresses criminal proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 96-A for future use.

 

 

 

 

RULE 97:  WILLS - Proof by Codicil

 

            If the Court finds that a codicil is executed with the same formality as a will, and that the codicil specifically refers to the will, ratifying and confirming those provisions not amended by the codicil, the Court shall allow the will to be proved by proving the codicil.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 03/25/1998

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 97 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Rule 24,  as proposed Probate Court Rule 97.

3.         The Committee replaced the title "Entry of Not Guilty Plea and Waiver of Formal Arraignment" with “Wills” and added the heading "Proof by Codicil," to clarify the topic of the rule.

 

 

 

 

RULE 98:  WILLS - Nuncupative or Lost

 

            In cases of nuncupative wills or lost wills, the Register shall follow the general procedures relating to the probate of estates.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 03/25/1998

Rev. 3 - 04/22/1998

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 98 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 25, with modifications, as proposed Probate Court Rule 98.

3.         The Committee changed the wording of the rule to give affirmative direction to Registers.

4.         The Committee replaced the title "Discovery" with "Wills" and added the heading "Nuncupative or Lost," to clarify the topic of the rule.

 

 

 

 

RULE 99:  WILLS - With Charitable Trust, Charitable Remainder Trust or Charitable Bequest

 

            Whenever a will containing a charitable trust, charitable remainder trust, or charitable bequest is presented for probate, the Register shall send a copy of said will to the Director of Charitable Trusts within fourteen (14) days after the will is allowed.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

FINAL - 05/27/1998

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 99 was repealed by Supreme Court Order.

2.         The Committee adopted current Probate Court Rule 26, with modifications, as proposed Probate Court Rule 99.

3.         The Committee added the title “Wills” and the heading "With Charitable Trust, Charitable Remainder Trust, or Charitable Bequest," to clarify the topic of the rule.

 

 

 

 

RULE 99-A:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 99-A addresses criminal proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 99-A for future use.

 

 

 

 

RULE 100:  VOLUNTARY ADMINISTRATIONS – Contribution of Non-estate Funds

 

            Financial contributions, from either trust or personal funds which are not a part of the estate, may be made for the purpose of paying estate bills.  Such contributions are not taken into account when determining the overall size of an estate relative to the jurisdictional limits found in RSA 553.

 

 

FINAL - 05/15/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 100 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted Administrative Order 1999-02, with modifications, as proposed probate Court Rule 100.

3.         The Committee replaced the title "Notice of Alibi" with "Voluntary Administration" and added the heading "Contribution of Non-estate funds," to clarify the topic of the rule.

 

 

 

 

RULE 100-A:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 100-A addresses criminal proceedings. As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 100-A for future use.

 

 

 

 

RULE 101:  STATUS REPORTS - Estates Opened Solely to Pursue a Cause of Action

 

            In estates opened solely to pursue a cause of action, a Fiduciary may file a motion to postpone the filing of annual accounts while the underlying legal action is pending.  In lieu of an account, the Fiduciary shall file status reports as ordered by the Court.  In no event, however, shall a Fiduciary be excused from filing an account for more than three (3) consecutive years.

 

 

FINAL - 05/15/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 101 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted Probate Court Administrative Order 2000-01, with modifications, as proposed Probate Court Rule 101.

3.         The Committee replaced the title "Notice of Criminal Defense" with "Status Reports" and added the heading "Estates Opened Solely to Pursue a Cause of Action," to clarify the topic of the rule.

 

 

 

 

RULE 102:  PRIVATE CLAIM BY OR AGAINST FIDUCIARY

 

            For purposes of this rule, a private claim is defined as a claim against the estate by the Fiduciary or a claim against the Fiduciary by the estate.  The Fiduciary shall give notice of a private claim either by:

            1.  Including the words "and private claim of" within the heading of the account and in the notice of such account.

            2.  Setting out the claim in a separate Motion to the Court.

 

 

Rev. 1 - 04/22/1998

Rev. 2 - 05/27/1998

Rev. 3 - 06/17/1998

FINAL - 05/24/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 102 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 35, with modifications, as proposed Probate Court Rule 102.

3.         The Committee replaced the first paragraph of the current Probate Court Rule 35 with a definition of the two types of private claims. 

4.         The Committee reworded the second and third paragraphs of the current Probate Court Rule 35 to clarify the two ways a claim may be expressed.

5.            See RSA 554:14 (1997) which explains notice in the account and notice to third parties.  See also, In re Estate of Crowley, 129 NH 557 (1987).

6.         The Committee replaced the title "Furnishing Background Material to Psychiatric Personnel Performing an Evaluation" with "Private Claim by or Against Fiduciary," to clarify the topic of the rule.

 

 

 

 

RULE 102-A:  CREDITOR'S CLAIM

 

            Pursuant to RSA 556:2 creditors have no obligation to file with the Court a copy of the notice of claim sent to the fiduciary.  If, however, a creditor chooses to file its notice of claim, the Register shall accept the copy and enter it upon the docket without requiring an Appearance Form.  A creditor who has not filed an Appearance Form is not a Party of record, entitled to notice and copies of the pleadings.  Any creditor wishing to become a Party of record, shall enter an Appearance.

 

 

FINAL - 07/07/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee developed proposed Probate Court Rule 102-A to address the filing of claims by creditors in the Probate Court.

2.         The Committee added the title "Creditor's Claim," to clarify the topic of the rule.

 

 

 

 

RULE 103:  BONDS - Corporate

 

            When a surety company is offered as surety on a probate bond, no such bond shall be approved unless the name of the person executing the bond for the surety company has been certified to the Register by the insurance commissioner, or such surety company shall have filed with the Register a power of attorney or a certified copy thereof authorizing the execution of such bond.  The Court may require proof, in the form of an affidavit or otherwise, that the person purporting to be an officer of any surety company and executing on behalf of the company any bond, letter, or power of attorney, is in fact such an officer.  The attorney-in-fact's name shall be printed or typed under his or her signature on the bond.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

Rev. 3 - 05/23/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 103 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 28, with modifications, as proposed Probate Court Rule 103.

3.         The Committee added the last sentence since the signatures on a bond are frequently illegible.

4.         The Committee replaced the title "Subdivision of Suspended Sentence" with "Bonds" and added the heading "Corporate," to clarify the topic of the rule.

 

 

 

 

RULE 103-A:  BONDS - Personal

 

            Personal bonds shall be used only when ordered by the Court, and no such bond shall be accepted unless the principal duly subscribes:

 

            I, THE PRINCIPAL NAMED ABOVE, AGREE TO PAY THE JUDGE OF PROBATE THE AMOUNT OF THIS BOND IF I DO NOT FAITHFULLY PERFORM THE DUTIES OF MY OFFICE AS FIDUCIARY AS REQUIRED BY NEW HAMPSHIRE LAW.  THIS OBLIGATION SHALL CONTINUE UNTIL I FULFILL ALL OF MY DUTIES AND SHALL BE BINDING ON MY ESTATE.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

Rev. 3 - 05/27/1998

Rev. 4 - 06/17/1998

Rev. 5 - 07/22/1998

FINAL - 6/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 103-A addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 30, with modifications, as proposed Probate Court Rule 103-A.

3.         The Committee omitted any reference to "surety."

4.         The Committee omitted "to the following affidavit" from the first paragraph and the affidavit, to comply with proposed changes to the personal surety bonds.

5.         The Committee replaced “expressly authorized and approved” with “ordered” to be consistent with Probate Court practice.

6.         The Committee replaced the title "Subdivision of Suspended Sentence" with "Bonds" and added the heading "Personal," to clarify the topic of the rule.

 

 

 

 

RULE 103-B:  BONDS - Change of Sureties or Penal Sum of Bond

 

            No change of sureties or of the penal sum (amount) of any probate bond shall be made except upon order of the Court.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

FINAL - 05/23/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Rule 27, with modifications, as proposed Probate Court Rule 103-B.

2.         The Committee added “amount” to clarify the meaning of “penal sum.” 

3.         The Committee replaced “petition and for good cause shown” with “order of the Court” were inserted.

4.         The Committee added the title "Bonds" and the heading "Change of Surety or Penal Sum of Bond," to clarify the topic of the rule.

 

 

 

 

RULE 104:  SURETY OR BENEFICIARY AS APPRAISER OR COMMISSIONER

 

            No surety on the bonds of Administrators, trustees, guardians, or conservators, nor any Person Beneficially Interested in an estate, shall be appointed appraiser or commissioner of the same estate.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

Rev. 3 - 05/27/1998

Rev. 4 - 05/23/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 104 was repealed in 1982.

2.         The Committee adopted current Probate Court Rule 29, with modifications, as proposed Probate Court Rule 104.

3.         The Committee reworded the rule for clarity.

4.         The Committee omitted the term "executor" in the first sentence, since Administrator includes executor.

5.         The Committee added the title "Surety or Beneficiary as Appraiser or Commissioner," to clarify the topic of the rule.

 

 

 

 

RULE 105:  INVENTORIES - Statement Concerning Fees

 

            Every Administrator shall file a statement concerning fees with the Register when the inventory is filed.

 

 

FINAL - 05/15/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 105 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Administrative Order 1997-01 (Revised), with modifications, as proposed Probate Court Rule 105.

3.         The Committee replaced the title "Procedure after Conviction in Criminal Case" with "Inventory" and added the heading "Statement Concerning Fees," to clarify the topic of the rule.

 

 

 

 

RULE 105-A:  INVENTORIES - Failure to Object

 

            When a copy of an inventory is sent to a Party or a Beneficially Interested person, failure to object within ten (10) days after the date the inventory is filed in the Court, shall act as a waiver of the right to object to the inventory and the right to any further notice concerning any hearing on the inventory.

 

 

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Administrative Order 1998-06, with modifications, as proposed Probate Court Rule 105-A.

2.         The Committee added "ten (10) days" to emphasize the time for filing objections to inventories.

3.         The Committee added the title "Inventory" and the heading "Failure to Object," to clarify the topic of the rule.

 

 

 

 

RULE 106:  MOTIONS FOR LICENSE TO SELL, MORTGAGE, OR LEASE

 

            When a license is required by statute, all motions for a license to sell, mortgage, or lease real estate, or to sell personal property shall not be acted upon until the inventory in that estate has been filed and accepted by the Court.  No real or personal property shall be sold for less than inventory value, unless otherwise ordered by the Court.

            All motions for a license to sell, mortgage, or lease real estate, or to sell personal property shall include the inventory value and, if different, the current market value of the property. All motions for a license to mortgage real estate shall include the amount of the note, interest rate, and the terms of the mortgage.  All motions for a license to lease real estate shall include the amount of rent, length of the lease, and the terms of the lease.

            All motions for a license to sell, mortgage, or lease real estate, shall contain a description of the real estate sufficiently accurate to make a conveyance thereof, and shall likewise contain a reference to the book and page number of the decedent's or ward's deed or title, as recorded in the Registry of Deeds.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 106 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 31, with modifications, as proposed Probate Court Rule 106.

3.         The Committee replaced “Petitions” with "Motions."

4.         The Committee replaced "duly filed in" with "filed and accepted by the," to be consistent with Probate Court practice.

5.         The Committee added the second sentence of the first paragraph to create a uniform standard for the Probate Court.

6.         The Committee added the second paragraph to ensure sufficient information is contained a motion for license to sell, mortgage, or lease.

7.         The Committee replaced "source of" with "book and page number" and added "as recorded in the Registry of Deeds, in the third paragraph of the rule, to define the term source.

8.         The Committee added “or ward's” following “decedent's” at the end of the third paragraph to recognize that this rule governs guardianships.

9.         The Committee replaced the title "Terms of Conditional Discharge" with "Motions for License to Sell, Mortgage, or Lease," to clarify the topic of the rule.

 

 

 

 

RULE 106-A:  MOTIONS FOR LICENSE TO SELL REAL ESTATE TO PAY DEBTS OR LEGACIES

 

            Motions for a license to sell real estate for the payment of debts or legacies must include a statement, under oath, showing the assets of the estate, the debts (and legacies, if any) due from the estate, and the estimated amount of the expenses of administration.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

Rev. 3 - 05/31/1998

Rev. 4 - 06/17/1998

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Rule 32, with modifications, as proposed Probate Court Rule 106-A.

2.         The Committee replaced "Petitions" with "Motions."

3.         The Committee omitted "except where the amount has been ascertained by the settlement of an account or the report of Commissioners of insolvency" to be consistent with current Probate Court practice.

4.         The Committee omitted "of condition" after "statement" since the Statement of Condition of Estate, and Schedule of Debts form has been eliminated.

5.         The Committee added the title "Motions for License to Sell Real Estate to Pay Debts or Legacies," to clarify the topic of the rule.

 

 

 

 

RULE 106-B:  LICENSE TO SELL, MORTGAGE, OR LEASE - Notification of Proceeds

 

            In a sale, mortgage, or lease under license, the Fiduciary shall notify the Court of the net proceeds of the sale, mortgage, or lease within thirty (30) days following receipt of such proceeds. 

 

 

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee added proposed Probate Court Rule 106-B to provide for timely notification to the Court of the net proceeds of any sale, mortgage or lease.

2.         The Committee added the title "License to sell, Mortgage, or Lease" and the heading "Notification of Proceeds," to clarify the topic of the rule.

 

 

 

 

RULE 106-C:  LICENSE TO SELL, MORTGAGE, OR LEASE - Return

 

            Whenever a Fiduciary has been granted a license to sell, mortgage, or lease real estate, the estate shall not be closed until the Fiduciary has filed the return of sale with the Court.  The return of sale shall indicate, under oath, the Fiduciary's actions pursuant to such license, whether or not any sale, mortgage, or lease, has been made thereunder.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Rule 33, with modifications, as proposed Probate Court Rule 106-C.

2.         The Committee replaced "issued" with "granted."

3.         The Committee replaced "final account" with "estate" and "allowed" with "closed."

4.         The Committee replaced "returned such license to the Court with a report" with "filed the return of sale with the Court."

5.         The Committee replaced "a report" with "the return of sale."

6.         The Committee omitted the second sentence of current Probate Court Rule 33 and incorporated licenses to mortgage and lease into the body of the rule.

7.         The Committee added the title "License to Sell, Mortgage, or Lease" and the heading "Return," to clarify the topic of the rule.

 

 

 

 

RULE 107:  SALES WITHOUT LICENSE

 

            No license is required in the sale of real estate when all heirs consent or when the sale is directed by the will.  After any such sale, the Fiduciary shall notify the Court of the net proceeds of the sale within thirty (30) days following receipt of such proceeds.

            The notification shall also contain a description of the real estate sufficiently accurate to make a conveyance thereof, and shall likewise contain a reference to the book and page number of the deed or title of the decedent or ward, as recorded in the Registry of Deeds.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

Rev. 3 - 05/27/1998

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 107 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee, during discussion of current Probate Court Rule 33, decided that a new rule was necessary to provide for notification of any sale without license within 30 days following receipt of sale proceeds.  The Committee developed and approved this new rule, as proposed Probate Court Rule 107.

3.         The Committee replaced the title "Terms of Conditional Discharge" with "Sales without License," to clarify the topic of the rule.

 

 

 

 

RULE 108:  FIDUCIARY ACCOUNTING STANDARDS

 

            The following standards shall be applicable to all interim and final accountings of Administrators, trustees, guardians and conservators, required or permitted to be filed with the Court.

  A. Accounts shall be stated in a manner that is understandable by persons who are not familiar with practices and terminology peculiar to the administration of estates, trusts, guardianships and conservatorships.

            1. All accounts shall be rendered on a cash basis, except in extraordinary circumstances upon specific written order of the Court.

            2. All accounts shall be rendered for a specified period, with an indicated opening and closing date.  Such period shall be for not more than twelve months ending on the last day of a calendar month.  A first accounting shall begin on the date of appointment and end on the last day of the calendar month next preceding the anniversary month of appointment, unless a shorter period is specified in such accounting, or unless otherwise modified upon appropriate Motion to the Court.  Accounts subsequent to the first account shall be for periods of twelve (12) months.  An accounting other than a first account may be for a shorter period if it is appropriate because a specified event (such as death of a beneficiary or ward; or date specified in the applicable Court order or will) occurs, resulting in a change in the responsibilities or duties of the Fiduciary.

            3. For Administrators, accounts shall list all receipts by source (other than the principal value of real estate, unless the real estate has been actually sold by the Fiduciary) and all disbursements by payee.  Gains and losses on disposition of property shall be netted and reported with receipts.

            4. For trustees, accounts shall list separately all receipts and disbursements of principal by source and by payee; and all receipts and disbursements of income by source and by payee.  Gains and losses on disposition of property shall be netted and reported with receipts of principal.

            5. For guardians and conservators, accounts shall list separately all receipts by source and all disbursements by payee.  Gains and losses on disposition of property shall be netted and reported with receipts.  For each asset comprising the reported "Balance in Hands of Fiduciary," excluding all Tangible Personal Property, the Fiduciary shall provide Proof of Assets.

            6. All accountings shall be capable of being understood by a person of average intelligence, literate in English, and familiar with basic financial terms, who has read the accounting with care and attention.

            7. The use of terms of special meaning, such as “debit” or “credit” or abbreviations, should be avoided or explained.

  B. A Fiduciary account shall begin with a concise summary of its purpose and content.  The account shall begin with a brief statement identifying the Fiduciary, the subject matter, the relationship of parties interested in the account to the account, and, if applicable, appropriate notice of any limitations on or requirements for action by parties interested in the account.  The following information shall be provided.

            1. The sequence of the account (first, second, etc.) and identification of a final account as such.

            2. The period covered by the account, with an indicated opening and closing date (i.e., the accounting period).

            3. Identification of the Fiduciary by name; title (executor, administrator, etc.); mailing address; and telephone number through which Fiduciary may be contacted.

            4. At the Fiduciary’s option, a statement of the purposes of filing the account.

            5. Identification of the attorney, if any, representing the Fiduciary by name; business address; and telephone number.

            6. Identification of the parties interested in the account as of the date of filing, by name; capacity in which interested in the account (remainderman, income beneficiary, ward, heir-at-law, etc.); and last known residence or business address.

            7. A summary of the total receipts, total disbursements and total balance on hand at the end of the account, all expressed in dollar values, supported by schedules in the account.

  C. A Fiduciary account shall contain sufficient information to put parties interested in the account on notice as to all significant transactions affecting administration during the accounting period.

            1. The first account of a Fiduciary shall detail the items received by the Fiduciary and for which the Fiduciary is responsible.  The account shall not simply refer to the total amount of an inventory filed separately or assets described in documents other than the account itself.  Tangible Personal Property may be referred to in summary form; provided, however, that such summary designates where detailed lists of the applicable Tangible Personal Property may be located.

            2. In second and subsequent accounts, the opening balance shall not simply refer to the total value of assets on hand as shown in detail in the prior account, but shall list each item separately.  Tangible Personal Property may be referred to in summary form, as in the manner prescribed for first accounts.

            3. Transactions shall be described in sufficient detail to give parties interested in the account notice of their purpose and effect.

            4. All balances on hand shall be itemized, on a separate schedule.

            5. (a) If the residue or remainder passes to more than one beneficiary, on filing a final account in the administration of an estate or trust a Fiduciary shall file a separate schedule listing in detail the computation and satisfaction of disbursements provided under the residuary provisions of the will, in order to reconcile the aggregate of such disbursements to the provisions of the will.

               (b) If the balance of an intestate estate passes to more than one heir, on filing a final account in the administration of an estate a Fiduciary shall file a separate schedule listing in detail the computation and satisfaction of disbursements provided under the laws of intestacy, in order to reconcile the aggregate of such disbursements.

            6. Compensation of attorneys and professionals shall be shown separately.  Extraordinary administrative costs (such as appraisals, ancillary administration expenses, etc.) shall be shown separately and explained.  Administrative costs of Court and other fees; postage; copying; telephone toll charges; and similar routine out-of-pocket expenses (but not attorney’s fees, other professional fees or Fiduciary commissions) may be shown summary form.

            7. With regard to compensation of fiduciaries, the basis for calculation or computation shall be shown in detail.

            8. With regard to disposition of real estate by a Fiduciary, the Fiduciary shall show the date of disposition, the gross sales price or disposition value, plus all adjustments to such price or value incident to the disposition, including costs of sale and applicable real estate and transfer taxes, to permit ready determination, by parties interested in the account, of how the net sale proceeds received by the Fiduciary were calculated.

            9. With regard to gains and losses on disposition of property, the Fiduciary shall provide with regard to each disposition the date of disposition, proceeds of disposition and book value or cost of the disposed property.

            10. Interest and penalties paid in connection with late filing of tax returns, late payment of tax liabilities, of any nature, probate citations for late filing or failure to file reports or accountings, shall be shown separately and explained.

            11. An extraordinary allocation between principal and income shall be separately stated and explained.

            12. If the Fiduciary makes an allocation, such as the computation of a formula marital deduction gift, involving non-probate assets, it shall be explained in detail; provided, however, that the non-probate assets involved in such computation may be stated in summary form.

            13. No disbursements for administrative expenses shall be listed as “estimated” or “reserved” without explanation.

  D. A Fiduciary account shall include both book value or cost of assets and current values of such assets at the beginning and end of the accounting period.

            1. “Book value” (a) for Administrators, shall be the value of the property at the date of death; (b) for trustees, shall be the book value of the prior Fiduciary from whom the property was received; and (c) for guardians and conservators, shall be the value of the property at the date of appointment.

            2. “Cost” shall be the consideration given or paid by a Fiduciary with regard to property initially acquired by the Fiduciary.

            3. If book values at initial valuation cannot be readily determined, the values used shall reflect a thoughtful decision by the appraiser; and the explanation of the principal factors determining such decision shall be set forth in the account in which such values are first reported.

            4. If current values for interim or final accountings cannot be readily determined, the values used shall reflect a good faith judgment by the Fiduciary; and the explanation of the principal factors determining such decision shall be set forth in the account. Such valuation shall be subject to approval of the Court.    

            5. Book value or cost shall not normally be adjusted for depreciation except upon specific written order of the Court.

            6. Book value based on date of death may be adjusted to reflect federal valuation elections or changes on audit of the estate or inheritance tax returns, upon appropriate Motion to the Court.

            7. A successor Fiduciary or co-Fiduciary may adjust the book value or cost of assets to reflect values at the start of the administration of, or subsequent receipt of assets by, the successor Fiduciary or co-Fiduciary, upon appropriate Motion to the Court.

            8. Assets received in kind by a Fiduciary in satisfaction of a pecuniary legacy shall be carried at the value used for the purposes of such disbursement.

            9. Current values for the beginning and closing dates of the accounting period shall be determined by the same methods used to determine book value, or by reference to readily determinable fair market valuing techniques (for example, market values for readily traded securities; principal balance for certificates of deposit, etc.); provided, however, that any variations in valuing method shall be explained.

            10. Accounts of the administration of any decedent’s estate need not reflect current values of assets at the end of the accounting period.

            11. When an asset is held by a trustee, guardian or conservator, under circumstances that make it clear that it is not likely to be disposed of (for example, a residence held for the use of a beneficiary), the Fiduciary may report an estimate of current value; provided, however, that the Fiduciary discloses the use of an estimate and the Fiduciary’s basis for the estimate used.

  E. The account shall show significant transactions that do not affect the amount for which the Fiduciary is accountable.

            1. The schedule listing such transactions shall consist of an information schedule, which shall be set forth at the end of the other schedules required in an account, setting forth each transaction by a separate number.

            2. All changes in investments not reflected as gains or losses reported on other schedules of receipts shall be listed. These would include, but not be limited to, stock dividends; stock splits; changes in name; exchanges; or reorganizations.

            3. All new investments made within the accounting period, and in hand at the close thereof, shall be noted on the schedules of assets on hand at the close of the accounting period. Totally new investments, and increased or additional investments in the same investment as shown on the schedules of assets on hand at the beginning of the accounting period of the account, shall be separately designated or annotated.

            4. With regard to book accounts, notes or installment obligations (whether secured or not), detail regarding collections or payments shall be provided to permit reconciliation of the balances shown on schedules of assets on hand at the beginning and the close of the accounting period.

            5. The Fiduciary shall also report on the information schedule the details of any events causing or resulting in a change in the manner, method or course of the Fiduciary’s administration. Such events would include, but not be limited to, death of an interim income beneficiary; shifting enjoyment of the income to another beneficiary; death of a remainderman during the course of administering an estate; or a beneficiary reaching a designated age, after which time the beneficiary has a right to mandate partial withdrawals of principal.

 

 

Rev. 1 - 05/31/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 108 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 49, with modifications, in conjunction with Procedure Bulletin 1998-04, with modifications, as proposed Probate Court Rule 108.

3.         The Committee replaced "Petition" with "Motion."

4.         The Committee omitted the term "executor" in the first sentence, since Administrator includes executor.

5.         The Committee added the third sentence in (A)(5) to address Proof of Assets.

6.         The Committee added paragraph (C)(5)(b) to cover intestate estates.

7.         The Committee replaced the title "Application to Annul Record of Conviction and Sentence" with "Fiduciary Accounting Standards," to clarify the topic of the rule.

 

 

 

 

RULE 108-A:  ACCOUNTS - Failure to Object

 

            When a copy of an account is sent to a Party or a Beneficially Interested Person, failure to object within thirty (30) days after the date the account is filed in the Court, shall act as a waiver of the right to object to the account and the right to any further notice concerning any hearing on the account.

 

 

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Administrative Order 1998-06, with modifications, as proposed Probate Court Rule 108-A.

2.         The Committee added "thirty (30) days" to emphasize the time for filing objections to accounts.

3.         The Committee added the title "Account" and the heading "Failure to Object," to clarify the topic of the rule.

 

 

 

 

RULE 108-B:  ACCOUNTS - Personal Attendance

 

            All fiduciaries shall appear at any hearing upon their accounts, unless excused by the Court.

 

 

Rev. 1 - 04/22/1998

Rev. 2 - 05/27/1998

Rev. 3 - 06/17/1998

Rev. 4 - 07/22/1998

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted current Probate Court Rule 37, with modifications, as proposed Probate Court Rule 108-B.

2.         The Committee added the title "Accounts" and the heading "Personal Attendance," to clarify the topic of the rule.

 

 

 

 

RULE 109:  INTERPRETERS

 

            No Person who has assisted in the preparation of a case,  shall act as an interpreter at the trial thereof, if objection is made, except in the discretion of the Court.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 109, with modifications, as proposed Probate Court Rule 109.

2.         The Committee added “except in the discretion of the Court” in order to give discretion to Probate Judges.

3.         American Sign Language Interpreters for the Deaf are governed by RSA 521-A.  The New Hampshire Department of Education, Division of Vocational Rehabilitation is the responsible entity for maintaining the list of certified interpreters.  This organization also sets the fees and provides a directory to Administrative Office of the Courts for distribution to the courts.

4.         Foreign language interpreters are governed by the Code of Professional Ethics Linguistic Translators.  The fee schedule is set by the Supreme Court (Administrative Order 1987-1A).  A.O.C. has provided a list (by language) of interpreters willing to assist parties at court hearings.           

 

 

 

 

RULE 110:  MOTIONS FOR COMMISSIONER OF INSOLVENCY

 

            All motions for a commissioner of insolvency shall include a statement of the debts due from the estate so far as can be ascertained, and the value of the real and personal property.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 04/22/1998

FINAL - 05/31/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 110 addresses naturalization which is not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 34, with modifications, as proposed Probate Court Rule 110.

3.         The Committee replaced "[p]etitions for decedents' estates to be administered as insolvent" with "[a]ll motions for a commissioner of insolvency."

4.         The Committee omitted the oath requirement since it is not required in RSA 557:1.

5.         The Committee replaced "appraisal" with "value" to reflect the fact that appraisal may not be mandated where credible and reliable alternatives exist.

6.         The Committee added the title "Motions for Commissioner of Insolvency," to clarify the topic of the rule.

 

 

 

 

RULE 111:  GUARDIANSHIP OF MINORS NECESSITATED BY RSA 464-A:42

 

            A guardianship necessitated by the provisions of RSA 464-A:42 may be filed any time after suit has been commenced in the Superior Court or District Court, and before settlement is approved by the Superior Court or District Court. A copy of the proposed Petition to the Superior Court or District Court seeking approval of the settlement, as well as all supplemental documentation required under Superior Court or District Court rule, shall be appended to the petition for guardian.

            If the settlement contemplated at the time of the filing of the petition for guardian, as reflected in the appended Superior or District Court Petition, proposed Petition and supplemental documentation, shall be in any manner changed prior to approval by the Superior or District Court, even if at the direction of that Court, the guardian shall immediately file a written notification with the Probate Court, with copies of the revised documentation appended.

            Upon its consideration of the petition for guardian and any subsequently filed notice of revision, the Probate Court shall consider the form or sufficiency of bond. Any alteration of bond requirements shall be at the Court’s discretion.

            In establishing the form and sufficiency of bond, the Probate Court shall consider the nature and amount of the asset(s), its (their) form of investment, the guardian's experience and reputation in managing property of the same or similar type as that of the guardianship, the attendant risks or volatility of the form of investment(s), any restrictions or limitations imposed upon the guardian by the Court in mitigation of waste, misfeasance or malfeasance and similar concerns related to the safety and security of the guardianship estate and its proper administration and management. After giving the consideration required, the Court, in its discretion, shall impose such bond requirements as attendant circumstances warrant.

            No letter of appointment shall issue until the bond has been posted by the guardian and approved by the Probate Court.  The Probate Court may require supplemental, substitute or an alteration in the bond requirements from time to time to accommodate changing circumstances of the guardianship.  Upon establishment of the guardianship, a letter of guardianship shall issue which shall have appended to it a decree referencing the Probate Court’s consideration of the proposed settlement in relation to the Fiduciary bond or in lieu thereof, the Probate Court shall issue a certification or provide other documentation which the guardian shall file with the Superior Court or District Court, as required under Superior or District Court rule, confirming that in setting the fiduciary bond of the guardianship, the settlement was considered.

            Unless specific written Probate Court authorization is granted for alternate investment, the guardian may invest the settlement asset(s) only in accordance with RSA 463:20,:22 and :23-a.

            To minimize the expense of bond requirements, the Probate Court may, in its discretion, restrict, restrain or enjoin the guardian from expending, withdrawing, encumbering or otherwise disposing of the settlement proceeds without prior written approval of the Probate Court or upon such other limitations or conditions as it may impose.

            To further minimize the expenses and any attendant inconvenience the Court may, in its discretion, waive annual accounting and order accounting on such other basis as the circumstances of the guardianship may reasonably require from time to time. In the absence of a contrary order, an accounting shall be filed annually by the guardian.

            All costs, expenses and fees related to the guardianship shall be paid from the guardianship estate assets subject to the approval of the Probate Court.

 

 

Rev. 1 - 04/18/1997

Rev. 2 - 10/26/1998

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 111 addresses petitions for approval of settlement of actions on behalf of minors in the Superior Court.  The Committee decided to develop a rule to set forth the procedure to be followed when a guardianship of a minor is necessitated under RSA 464-A:42.

2.         The Committee replaced the title "Petition for Approval of Settlement on Behalf of Minors" with "Guardianship of Minors Necessitated By RSA 565-A:42," to clarify the topic of the rule.

 

 

 

 

RULE 111-A:  GUARDIANSHIP OF MINORS - Procedure on Receipt of Additional Assets

 

            In the event that a guardian of the estate of a minor shall receive additional assets not identified in the guardian's inventory, the guardian shall file within ten (10) days after receipt, written notice with the Court containing a description of the assets received and the market value of the assets.

            The Court shall review the amount of the guardian's bond in light of the additional assets received by the guardian.  The Court shall order an increase in the amount of the guardian's bond if the Court determines such an increase is necessary in light of the receipt of the additional assets.  Upon receipt of the Court's order the guardian shall arrange for the increase of the bond.

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee decided to develop a new rule to set forth the procedure to be followed when a guardian of the estate of a minor receives additional assets not shown in the inventory.

2.         The Committee added the title "Guardianship of Minors" and heading "Procedure on Receipt of Additional Assets," to clarify the topic of the rule.

 

 

 

 

RULE 112:  CONFIDENTIAL INFORMATION

 

             Any Pleading, report, record, or evidence submitted to the Court containing confidential information, as defined by law, shall be maintained in a file marked "CONFIDENTIAL" by the Register. 

            The Register shall remove the confidential file from the public file before making it available to anyone not a Party to the action requesting access to the file.  Anyone not a Party to the action requesting access to confidential information in the file shall be advised to follow the procedures outlined in the "Guidelines for Public Access to Court Records."

 

 

Rev. 1 - 10/26/1998

Rev. 2 - 07/07/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted the principle behind Superior Court Rule 112 addressing probation reports and applied it to those reports used in the Probate Court context, as proposed Probate Court Rule 112.

2.         The Committee replaced the title "Probation Reports" with "Confidential Information," to clarify the topic of the rule.

 

 

 

 

RULE 113:  CONSOLIDATION OF ACTIONS

 

            Whenever a Motion is filed in any county requesting the transfer of an action there pending to another county for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, after notice to all Parties in all related actions pending in the state, the Court may make such order for consolidation in any one of such counties in which such actions are pending.  The Court, on its own Motion, may initiate consolidation.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 12/16/1998

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court 113, with modifications, as proposed Probate Court Rule 113. 

2.         The Committee added the last sentence to allow the Court to consolidate on its own Motion.  This represents a change from current Superior Court practices and is proposed to promote judicial efficiency and justice.

3.         The Committee replaced "Presiding judge" with "Court."

 

 

 

 

RULE 114:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 114 addresses presence of counsel during jury deliberation.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 114 for future use.

 

 

 

 

RULE 115:  CHANGE OF VENUE, INCONVENIENT FORUM

 

            Venue of any Probate administration or other proceeding may be changed from the Probate Court of one county, hereafter called “transferring Court,” to the Probate Court of any other county, hereafter called “receiving Court.”  Upon Petition or Motion to both Courts and sufficient proof of inconvenience, change of residence of a principal Party to the proceeding, or other good cause shown, in the discretion of the transferring Court, venue may be changed subject to acceptance by the receiving Court.

            Once the transferring Court has granted and the receiving Court has accepted the change of venue, the transferring Court shall forward the original file of the Probate records to the receiving Court and retain a copy, unless, as a part of the order of transfer or acceptance, only a specified part of the original file is transferred or ordered reproduced and authenticated.  Upon the change of venue, the transferring Court shall give notice to all interested parties of the change of venue and notice that all future Pleadings shall be filed with the receiving Court.

            Whenever transfer is made of the administration of a decedent’s estate, a guardianship, a conservatorship, or other proceeding where a bond is pending in the transferring Court, the bond shall remain in effect unless or until specifically discharged by the receiving Court.  In those cases where a new bond is required by the receiving Court, the transferring Court may discharge the original bond.

            To effect a change of venue, the following must occur:

            1.  A Motion shall be filed in the transferring Court.

            2.  The Motion must be granted by the transferring Court.

            3.  A Petition to accept the transfer must be filed in the receiving Court.

            4.  A Petition to accept the transfer must be granted by the receiving Court.

            5.  The Petitioner shall notify the bonding company of the proposed transfer.

            6.  The Petitioner shall file with both Courts the written assent from the bonding company to the transfer, or file a new bond with the receiving Court.

            Jurisdiction of a Probate matter may be transferred out of state by following the procedure outlined above, except that the transferring Court shall forward certified copies of the file to the receiving Court and shall retain the original file.

 

 

Rev. 1 - 02/25/1998

Rev. 2 - 03/25/1998

Rev. 3 - 04/22/1998

Rev. 4 - 05/27/1998

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 115 addresses criminal proceedings which are not applicable to the Probate Court.

2.         The Committee adopted current Probate Court Rule 21, with modifications, as proposed Probate Court Rule 115.

3.         As the Committee decided that the original file should be transferred with the transferring Court retaining a complete copy, any reference to "official record" was replaced with "original file."

4.         The Committee added the second sentence to the second paragraph to give the transferring Court the responsibility to notify all Parties of the change of venue, and all future Pleadings shall be filed with the receiving Court.

5.         The Committee replaced “that” with “receiving Court” at the end of the first sentence of the third paragraph to appropriately place the responsibility of discharging a pending bond on the receiving court.  The Committee concluded that, in this manner, a bond could not be discharged by a transferring Court without the knowledge of the receiving Court.  The following sentence was added so that if a new bond is required by a receiving Court, the transferring Court could discharge the existing bond.

6.         The Committee specifically placed the burden of notifying the bonding company, and filing with both Courts, on the Petitioner.

7.         The Committee added the fourth paragraph to emphasize that jurisdiction may be changed to another state by following the procedure outlined in the rule, except that the original file shall be retained with the transferring Court.

8.         The Committee added the title "Change of Venue, Inconvenient Form," to clarify the topic of the rule.

 

 

 

 

RULE 116:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 116 addresses applying the rules regulating actions at law to the practice in equity.  Since the proposed Probate Court Rules are not divided into separate sections for actions at law and equity, the Committee decided to reserve proposed Probate Court Rule 116 for future use.

 

 

 

 

RULE 117:  FORM OF PLEADING

           

            The name of the county in which a Pleading is filed shall be written in the upper left margin of each Pleading; and the words “in said county” shall refer to the county in the margin, unless the contrary appears.

 

 

Rev. 1 - 02/11/1997

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 117, with modifications, as proposed Probate Court Rule 117.

2.         The Committee omitted any references to bills (bills in equity) in proposed Probate Court Rules 117-125 since there are no bills in the Probate Court context.

3.         The Committee replaced “Petition” with “Pleading”.

4.         The Committee replaced the title "Bills and Petitions" with "Form of Pleading," to clarify the topic of the rule.

 

 

 

 

RULE 118:  FORM OF EQUITY PETITIONS - Structure

 

            Every Equity Petition shall contain the county, title of the Court, names, places of abode, and proper description of all Parties to the proceeding.  The form in substance shall be as follows:

 

                                 PROBATE COURT

 

County of ____________,                                Month, Year

 

                                            A.B.

                                               v.

                                            C.D.

 

                                NAME OF PETITION

 

            A.B. of etc., complains against C.D. of etc., and says, etc. and requests, etc...

 

            The Petition may conclude “and thereupon the Petitioner prays,” setting forth the special relief sought, “and for such other relief as may be just”.  If an injunction or other special order pending the suit is desired, it shall be specifically requested.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

Rev. 3 - 12/16/1998

Rev. 4 - 01/27/1999

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 118, with modifications, as proposed Probate Court Rule 118.

2.         The Committee replaced “Plaintiff” with “Petitioner”.

3.         The Committee replaced the title "Bills and Petitions" with "Form of Equity Petitions" and added the heading "Structure," to clarify the topic of the rule.

 

 

 

 

RULE 119:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 119 mandates the inclusion of the plaintiff's mailing address on all bills and petitions.  As proposed Probate Court Rule 2 addresses the same issue in greater detail, the Committee decided to reserve proposed Probate Court Rule 119 for future use.

 

 

 

 

RULE 120:  FORM OF PETITION AND ANSWER - Obligation to be concise

 

            Every Petition and Answer should be expressed concisely; and no deed, will, agreement or other writing shall be set forth at length or annexed to any Petition or Answer, but only so much as may be material.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 120, with modifications, as proposed Probate Court Rule 120.

2.         The Committee replaced the title "Bills and Petitions" with "Form of Petition and Answer" and added the heading "Obligation to be concise," to clarify the topic of the rule.

 

 

 

 

RULE 121:  FORM OF PETITION AND ANSWER – Numbered Paragraphs

 

            Each allegation of distinct and separate facts should be placed in a paragraph by itself which should be numbered; and, when so numbered, the order observed in the Petition should be followed in the Answer.

 

 

Rev. 1 - 02/11/1997

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 121, with modifications, as proposed Probate Court Rule 121.

2.         The Committee replaced the title "Bills and Petitions" with "Form of Petition and Answer" and added the heading "Numbered paragraphs," to clarify the topic of the rule.

 

 

 

 

RULE 122:  PETITION TO QUIET TITLE

 

            All Petitions to remove clouds from title shall contain a separate paragraph setting forth specifically the clouds sought to be removed and the legal basis relied upon for their removal.

 

 

Rev. 1 - 02/11/1997

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 122, as proposed Probate Court Rule 122.

2.         The Committee replaced in the title "Remove Clouds From" with "Quiet," to clarify the topic of the rule.

 

 

 

 

RULE 123:  [Reserved for Future Use]

 

 

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 123 addresses special school and town meetings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 123 for future use.

 

 

 

 

RULE 124:  PETITION - Entry and Orders

 

            Petitions may be filed at any time.  An order of notice shall be issued, returnable, at the election of the Party who takes out the same, subject to the requirements of service, at any Return Day within three (3) months from the date thereof.  An order of notice returnable at any date other than a regular Return Day may issue if the Court finds that justice so requires.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

Rev. 3 - 12/16/1998

FINAL - 05/10/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 124, with modifications, as proposed Probate Rule 124.

2.         The Committee replaced the title "Entry, Order and Service" with "Petition" and added the heading "Entry and Orders," to clarify the topic of this rule.

 

 

 

 

RULE 125:  PETITION - Service

 

            Service of an attested copy of the Petition and order of notice may be shown by affidavit of the Person serving the same, or by the return of the officer.

            If service as specified in the orders of notice can not be accomplished, the Court may order one of the following methods of service of process, in the following priority, subject to the discretion of the Court:

            1.  In hand.

            2. Abode.

            3. Certified or registered mail, return receipt requested (restricted delivery to addressee only).

            4.  Certified or registered mail, return receipt requested.

            5.  Publication, in accordance with Rule 128.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

Rev. 3 - 12/02/1997

Rev. 4 - 3/11/1998

Rev. 5 - 3/25/1998

Rev. 6 - 05/11/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 125, with modifications, in conjunction current Probate Court Rule 19, with modifications, as proposed Probate Court Rule 125.

2.         Parties should review RSA 510:4 for service of process on non-resident respondents.

3.         The Committee replaced the first sentence of current Probate Court Rule 19 in the second paragraph of proposed Probate Court Rule 125, to clarify that the Court orders alternative methods of service of process.

4.         The Committee moved the contents of number four of current Probate Court Rule 19 to proposed Probate Rule 128 which addresses notice by publication.

5.         The Committee replaced the title "Entry, Order and Service" with "Petition" and added the heading "Service," to clarify the topic of the rule.

 

 

 

 

RULE 126:  PETITION - Attested copies

 

            In all cases where attested copies are required, copies attested by the Attorney for the Party shall be sufficient.

 

 

Rev. 1 - 02/11/1997

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 126, with modifications, as proposed Probate Court Rule 126.

2.         The Committee omitted "except libels for divorce and petitions affecting the marriage relation," as it is not applicable to the Probate Court.

3.         The Committee replaced the title "Entry, Order and Service" with "Petition" and added the heading "Attested copies," to clarify the topic of the rule.

 

 

 

 

RULE 127:  PETITION - Time limits for Answer

 

            Every order of notice shall contain an order to the Respondent to file an Answer within thirty (30) days after the Return Day and to deliver a copy thereof to the Petitioner’s Attorney, or to the Petitioner if pro se; otherwise the Petition will be taken pro confesso.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 127, with modifications, as proposed Probate Rule 127.

2.         The Committee replaced “Defendant” with “Respondent” and "Plaintiff" with "Petitioner".

3.         The Committee omitted any reference to “demurrers”, “bills” and “libel” as they are not applicable in the Probate Court.

4.         The Committee added "or to the Petitioner if Pro Se" after the words "Petitioner's Attorney."

5.         The Committee replaced the title "Entry, Title and Service" with "Petition" and added the hearing "Time limits for answer," to clarify the topic of the rule.

 

 

 

 

RULE 128:  PETITION - Notice by Publication

 

            Except where otherwise required by statute or ordered by the Court, in cases of notice by publication where the time may be fixed by the Court, the order shall be for publication in a newspaper having general circulation in the area where the Party was last known to have resided, once a week for two successive weeks, the last publication to be not less than seven (7) days before hearing or not less than fourteen (14) days before the Return Day.

            When ordered by the Court, in addition to publication the petitioner shall:

            1. File with the Court a statement under oath of the name, residence address and/or post office address of some near relative, if any is known, and otherwise the name, residence address and/or post office address of some friend; and

            2. Send by registered or certified mail, with request for return receipt, a copy of the Petition, Motion or other Pleading attested by the Register with citation or order of notice appended, the same to be mailed to such relative or friend.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

Rev. 3 - 03/25/1997

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 128, with modifications, in conjunction with number four of current Probate Court Rule 19, with modifications, as proposed Probate Court Rule 128.

2.         The Committee added “[e]xcept where otherwise required by statute or ordered by the Court” to account for statutes that may conflict with this rule.

3.         The Committee substituted two for three for the number of weeks required for publication pursuant to RSA 550:10.

4.         The Committee added "not less than seven (7) days before the hearing" to be consistent with current Probate Court practice.

            The Committee added "[w]hen ordered by the Court," to allow discretion in ordering notice to a near relative or friend.

5.         The Committee replaced "Register" with "Petitioner" to place the burden of notice to a near relative or friend on the Petitioner.

6.         The Committee replaced the title "Entry, Order and Service" with "Petition" and added the heading "Notice by Publication," to clarify the topic of the rule.

 

 

 

 

RULE 129:  PETITION - Writs of Attachment

 

            All writs of attachment in aid of a Petition must be served upon the Respondent.  Rule 86 relating to trustees' disclosure shall apply to this rule.  Any such writ shall be entered without charge and filed with and as part of the action which it aids.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

FINAL - 06/19/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 129, with modifications, as proposed Probate Court Rule 129.

2.         The Committee replaced "a bill in equity, libel for divorce, or petition for legal separation" with "Petition" as they are not applicable in the Probate Court.

3.         The Committee replaced the title "Entry, Order and Service" with "Petition" and added the heading "Writs of Attachment," to clarify the topic of the rule.

 

 

 

 

RULE 130:  [Reserved for Future Use]

 

 

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Superior Court Rule 130 was repealed in 1989.  The Committee decided to reserve proposed Probate Court Rule 130 for future use.

 

 

 

 

RULE 131:  APPEARANCES AND ANSWERS - Time to file

 

            In the absence of other express court order, rule, or statutory provision, if the Respondent, having been duly notified, shall neglect to enter an Appearance within seven (7) days after the Return Day or shall neglect to file and deliver to the Petitioner’s Attorney an Answer within the time prescribed in the order of notice, the Petition shall be taken as pro confesso, and a decree entered accordingly.  No such decree pro confesso shall be set aside, except by agreement, or by order of the Court upon such terms as justice may require.

 

 

Rev. 1 - 02/11/97

Rev. 2 - 03/04/97

Rev. 3 - 01/27/99

FINAL - 07/07/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 131, with modifications, as proposed Probate Court Rule 131.

2.         The Committee replaced "defendant" with "Respondent".

3.         The Committee added the first phrase of proposed Probate Court Rule 131, to be consistent with Probate Court practice.

4.         The Committee added seven (7) days to the deadline.

5.         The Committee omitted any reference to "plea" and "demurrer."

6.         The Committee replaced "bill" with "Petition."

7.         The Committee replaced the title "Answers and Demurrers" with "Appearances and Answers" and added the heading "Time to file," to clarify the topic of the rule.

 

 

 

 

RULE 132:  EQUITY ANSWERS - Form

 

            Every equity answer shall contain the county, the title of the Court, case, and docket number.  The form in substance shall be as follows:

 

                               PROBATE COURT

 

County of ___________,                            Month, Year

 

                                            A.B.

                                               v.

                                            C.D.

 

                                     Docket No. ____

 

                            ANSWER OF RESPONDENT

 

            C.D. of etc., answers as follows, etc...

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

Rev. 3 - 03/25/1997

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 132, with modifications, as proposed Probate Court Rule 132.

2.         The Committee added "equity" in the first sentence and "docket number" to be consistent with current Probate Court practice.

3.         The title of the Pleading may appear in one of the following forms:

                        a.  In re: A.B.

                        b. A.B. v. C.D.

                        c. Answer of C.D.

4.         The Committee replaced the title "Answers and Demurrers" with "Equity Answers" and added the heading "Form," to clarify the topic of the rule.

 

 

 

 

RULE 133:  ANSWERS

 

            The Respondent, in answering the allegations in the Petition, shall not do so evasively but shall answer fully and specifically every material allegation in the Petition and set out Respondent’s  defense to each claim asserted by the Petition.  If the Respondent is without knowledge of any particular facts, Respondent shall so state and this will be treated as a denial.  The Answer of the Respondent may state as many defenses as the Respondent deems essential.  The Respondent may allege any new or special matter in the Answer with a prayer for relief.  An answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission.

            All facts well alleged in the Petition, and not denied or explained in the Answer, will be held to be admitted.

 

 

Rev. 1 - 02/11/1997

Rev. 2 - 03/04/1997

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 133, with modifications, as proposed Probate Court Rule 133.

2.         The Committee replaced any reference to "bill, libel or petition" with "Petition."

3.         The Committee all references to replaced and reference to "defendant" with "Respondent"

4.         The Committee omitted from the title "and Demurrers," to be consistent with Probate Court practice.           

 

 

 

 

RULE 134:  [Reserved for Future Use]

 

 

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 134 addresses demurrers.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 134 for future use.

 

 

 

 

RULE 135:  AMENDMENTS TO PLEADINGS

 

            With the exception of accounts and inventories, all amendments to Petitions, Motions, or Pleadings must be proposed by Motion, which may be granted or denied by the Court.  For amendments to accounts and inventories, no Motion is required; but the entire court approved form shall be re-submitted.

 

 

Rev. 1 - 06/14/1996

Rev. 2 - 07/12/1996

Rev. 3 - 08/16/1996

Rev. 4 - 09/30/1998

Rev. 5 - 08/04/1999

FINAL - 05/08/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 135, with modifications, in conjunction with current Probate Court Rule 8, with modifications, as proposed Probate Court Rule 135.

2.         The Committee added the second sentence to clarify the process for amending accounts and inventories.

3.         The Committee added the title "to Pleadings," to clarify the topic of this rule.

 

 

 

 

RULE 136:  AMENDMENTS - Response

 

            A response to an amended Pleading must be filed within ten (10) days after the amended pleading has been filed or the facts set forth in the amendment shall be taken as admitted.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted the principle behind Superior Court Rule 136, as proposed Probate Court Rule 136.

2.         The Committee added the heading "Response," to clarify the topic of the rule.

 

 

 

 

RULE 137:  REPLICATIONS - Equity

 

            Every replication shall be filed within ten (10) days after the filing of the Answer and shall contain the county, the title of the Court, case, and docket number.  The form in substance shall be as follows:

 

                                    PROBATE COURT

 

County of ___________,                                 Month, Year

 

                                                 A.B.

                                                  v.

                                                 C.D.

 

                                         Docket No. ____

 

                             REPLICATION OF RESPONDENT

 

            C.D. of etc., replication as follows, etc...

 

 

Rev. 1 - 03/25/1997

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 137, with modifications, as proposed Probate Court Rule 137.

2.         The Committee added the format for a replication to be consistent with proposed Probate Court Rules 118 and 132.

3.         The Committee added the heading "Equity," to clarify the topic of the rule.

 

 

 

 

RULE 138:  [Reserved for Future Use]

 

 

FINAL - 05/11/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 138 addresses setting the order for trial.  As this rule is adequately addressed in proposed Probate Court Rule 13, the Committee decided to reserve proposed Probate Court Rule 138 for future use.

 

 

 

 

RULE 139:  NEW PARTIES

 

            Any Person shown to have an interest may become a Party to any proceeding on Motion briefly setting forth that Person’s relation to the Cause; or upon Motion of any Party, such Person may be made a Party by order of Court notifying that Person to appear therein.  If the Person so notified shall neglect to appear and respond, the Petition shall be taken pro confesso as against that Person.  No such decree pro confesso shall be set aside, except by agreement, or by order of the Court upon such terms as justice may require.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 04/18/1997

FINAL - 07/07/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 139, with modifications, as proposed Probate Rule 139.

2.         The Committee expanded this rule to include all case types within the context of the Probate Court.

 

 

 

 

RULE 140:  SECURITY FOR COSTS

 

            When the Petitioner is a non-resident, the Petitioner shall furnish security for costs in such amount and within such time as the Court may order.

 

 

Rev. 1 - 03/25/1997

FINAL - 05/16/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 140, with modifications, as proposed Probate Court Rule 140.

2.         The Committee replaced "plaintiff" with "petitioner."

 

 

 

 

RULE 141:  PRELIMINARY ORDERS

 

            The Court may, on its own motion or upon Motion of a Party, make orders for the appointment of guardians ad litem, preliminary orders, and other orders relative to proceedings preparatory to a hearing upon the merits.  Motions for dissolving injunctions or for the extension or rescission of any order may be heard by the Court upon notice.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

Rev. 3 - 11/15/1999

FINAL - 05/16/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 141, with modifications, as proposed Probate Court Rule 141.

2.         The Committee replaced "Interlocutory" with "Preliminary".

3.         The Committee replaced in the title "Interlocutory" with "Preliminary," to clarify the topic of the rule.

 

 

 

 

RULE 142:  CONTEMPT AND ARREST

 

            Orders for contempt may be issued by the Court at any time upon evidence of the violation of any injunction or other order, or for failure of witnesses to give evidence upon subpoena, and commitment may be made thereon.

            Parties may be arrested upon an order of the Court and required to give bonds for appearance and to abide the order of the Court in any case where it shall be deemed necessary.

            Due process requirements of notice and hearing shall be as provided by New Hampshire law.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 04/18/1997

Rev. 3 - 01/27/1999

Rev. 4 - 05/15/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 142, with modifications, as proposed Probate Court Rule 142.

2.         The Committee replaced “attachments” with "orders" in the first sentence of the first paragraph.  It is the understanding of the Committee that this particular use of “attachments” is an ancient one, meaning an order for the seizure of the body of the contemnor (an arrest).  “Orders” has a substantially similar meaning which is currently in general use by both legal practitioners and laypersons, hence the substitution.

3.         The Committee replaced “neglect” with "failure" in the first sentence of the first paragraph.  The Committee substituted "failure" as it has a broader meaning than “neglect” in this context, including willful refusals to give evidence as opposed to simply neglecting or forgetting to do so.

4.         The Committee added the third paragraph to clarify that due process requirements of notice and hearings apply in contempt proceedings.

 

 

 

 

RULE 143:  CONTEMPT AND ARREST - Bail

 

            Sheriffs and deputy sheriffs are authorized to take bail in contempt proceedings and shall immediately forward such bail to the Register of the Court issuing the capias.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

FINAL - 05/16/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 143, with modifications, as proposed Probate Court Rule 143.

2.         The Committee omitted "civil" to allow/permit the court to include both civil and criminal contempt cases.

3.         The Committee replaced "Clerk" with "Register."

4.         The Committee added the heading "bail," to clarify the topic of the rule.

 

 

 

 

RULE 144:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 144 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 144 for future use.

 

 

 

 

RULE 145:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 145 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 145 for future use.

 

 

 

 

RULE 146:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 146 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 146 for future use.

 

 

 

 

RULE 147:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 147 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 147 for future use.

 

 

 

 

RULE 148:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 148 was repealed in 1992.  The Committee decided to reserve proposed Probate Court Rule 148 for future use.

 

 

 

 

RULE 149:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 149 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 149 for future use.

 

 

 

 

RULE 150:  STIPULATIONS OR AGREEMENTS

 

            All stipulations or agreements shall be typewritten and signed by the Parties and, if represented, by their Attorneys as well.  The Court, in its discretion, may accept fully executed handwritten stipulations or agreements and may require a fully executed typewritten substitute to be filed with the Court within ten (10) days.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

Rev. 3 - 05/22/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 150, with modifications, as proposed Probate Court Rule 150.

2.         The Committee expanded this rule to include all case types within the context of the Probate Court.

3.         The Committee replaced the title "Divorce" with "Stipulations or Agreements," to clarify the topic of the rule.

 

 

 

 

RULE 151:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 151 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 151 for future use.

 

 

 

 

RULE 152:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 152 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 152 for future use.

 

 

 

 

RULE 153:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 153 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 153 for future use.

 

 

 

 

RULE 154:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 154 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 154 for future use.

 

 

 

 

RULE 155:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 155 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 155 for future use.

 

 

 

 

RULE 156:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 156 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 156 for future use.

 

 

 

 

RULE 157:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 157 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 157 for future use.

 

 

 

 

RULE 158:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 158 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 158 for future use.

 

 

 

 

RULE 159:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 159 addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 159 for future use.

 

 

 

 

RULE 159-A:  [Reserved for Future Use]

 

 

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 159-A addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 159-A for future use.

 

 

 

 

RULE 159-B:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 159-B addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 159-B for future use.

 

 

 

 

RULE 159-C:  [Reserved for Future Use]

 

 

FINAL - 01/27/1999

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 159-C addresses divorce proceedings.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 159-C for future use.

 

 

 

 

RULE 160:  [Reserved for Future Use]

 

 

Rev. 1 - 03/04/1997

FINAL - 03/18/1997

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 160 addresses Temporary Restraining Orders in the context of divorce and marital relations.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 160 for future use.

 

 

 

 

RULE 161:  TEMPORARY RESTRAINING ORDERS; PRELIMINARY INJUNCTIONS

 

  (a) Temporary Restraining Order; Notice; Hearing; Duration.  A temporary restraining order may be granted only by a judge of the Probate Court.  It may be granted without written or oral notice to the adverse Pro Se Party or Attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified petition that immediate and irreparable injury, loss or damage will result to the applicant before the adverse Pro Se Party or Attorney can be heard in opposition; and (2) the applicant or the applicant's Attorney certifies to the Court in writing the efforts which have been made to give the notice or the reasons supporting his or her claim that notice should not be required.  Any hearing held without the presence of the adverse Pro Se Party or Attorney shall be recorded, unless waived by the Court.  Every temporary restraining order, which is granted without notice, shall be endorsed with the date and hour of issuance, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after issuance, not to exceed ten (10) days, as the Court fixes, unless, within the time so fixed, the order, for good cause shown, is extended for a like period, or unless the Party, against whom the order is directed, consents that it may be extended for a longer period.  In case a temporary restraining order is granted without notice, the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within ten (10) days, and, when the matter comes on for hearing, the Party, who obtained the temporary restraining order, shall proceed with the application for a preliminary injunction, and if he or she does not do so, the Court shall dissolve the temporary restraining order.  On two (2) days' notice to the Party who obtained the temporary restraining order without notice, or on such shorter notice to that Party as the Court may prescribe, the adverse Party may appear and move its dissolution or modification, and, in that event, the Court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

  (b) Preliminary Injunction.

              (1) Notice.  No preliminary injunction shall be issued without notice to the adverse Party and they shall only be issued by a judge of the Probate Court.

              (2) Consolidation of Hearing With Trial on Merits.  Before, or after, the commencement of the hearing of an application for a preliminary injunction, the Court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.

  (c) Security.  Unless the Court, for good cause shown, shall otherwise order, no restraining order or preliminary injunction shall issue except upon the giving of an injunction bond by the applicant, in such sums as the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any Party who is found to have been wrongfully enjoined or restrained.  No such bond shall ordinarily be required of the United States or of the State of New Hampshire.

  The provisions of Rule 163 apply to a surety upon a bond or undertaking under this Rule.

   (d) Form and Scope of Injunction or Restraining Order.  Unless the Court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms;  shall describe in reasonable detail, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and Attorneys, and upon those Persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

Rev. 3 - 12/02/1999

Rev. 4 - 05/22/2000

FINAL  - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 161, with modifications, as proposed Probate Court Rule 161.

2.         The Committee omitted the last sentence of Superior Court Rule 161 (b)(2), since there are no jury trials in the Probate Court.

3.         The Committee omitted Superior Court Rule 161 (e), since it addresses preliminary injunctions with respect to labor disputes.

4.         The Committee replaced the title "Injunction" with "Temporary Restraining Orders; Preliminary Injunctions," to clarify the topic of the rule.

 

 

 

 

RULE 162:  INJUNCTIONS - Filing of Pleading

 

            Before injunctions are granted, it must appear that some Pleading has been filed; but, when the object of the injunction would be defeated by the delay necessary to file such Pleading, an injunction may issue to expire on a day specified therein, unless such Pleading be filed by such a day.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 162, with modifications, as proposed Probate Court Rule 162.

2.         The Committee replaced "process at law or in equity" with "pleading" to be more inclusive.

3.         The Committee added the heading "Filing of Pleading," to clarify the topic of the rule.

 

 

 

 

RULE 163:  INJUNCTIONS - Bond

 

            Whenever an injunction is issued without notice to, or appearance by, the adverse Party, the Party at whose request it is issued, may, and ordinarily shall, be required to give bond with sufficient sureties, conditioned to pay and satisfy all such damages as may be occasioned to the adverse Party by reason of the injunction, in case it shall that the injunction was unwarranted.

            Whenever these rules require or permit the giving of security by a Party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the Court and irrevocably appoints the Register as that Person’s agent upon whom any papers affecting liability on the bond or undertaking may be served.  Liability may be enforced on Motion without the necessity of an independent action. The Motion and such notice of the Motion as the Court prescribes may be served on the Register, who shall immediately mail copies to the sureties if their addresses are known.

 

 

Rev. 1 - 03/25/1997

Rev. 2 - 01/27/1999

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 163, with modifications, as proposed Probate Court Rule 163.

2.         The Committee deleted the reference to marital cases in the first paragraph, as they are not applicable in the Probate Court.

3.         The Committee replaced "unwarranted" with "improper" to add more clarity.

4.         The Committee replaced "Clerk" with "Register."

5.         The Committee added the heading "Bond," to clarify the topic of the rule.

 

 

 

 

RULE 164:  PREPARATION OF EX PARTE DECREES

 

            A Party requesting an ex parte decree shall prepare a proposed order for the Court to consider.

 

 

Rev. 1 - 03/25/1997

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 164, with modifications, as proposed Probate Court Rule 164.

2.         The Committee omitted "attorney of the" in front "Party" to include Pro Se Parties.

 

 

 

 

RULE 165:  [Reserved for Future Use]

 

 

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 165 addresses receivers.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 165 for future use.

 

 

 

 

RULE 166:  [Reserved for Future Use]

 

 

FINAL - 05/20/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 166 addresses dissolution of business corporations.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 166 for future use.

 

 

 

 

RULE 167:  [Reserved for Future Use]

 

 

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 167 addresses approval of lump sum settlements in workmen’s compensation cases.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 167 for future use.

 

 

 

 

RULE 168:  [Reserved for Future Use]

 

 

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 168 addresses the dismissal of old non-jury cases which have been pending without action. As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Rule 168 for future use.

 

 

 

 

RULE 169:  FEES

 

ENTRY FEES:

 

Original Entry of any Equity Action          $125.00

 

Petition File and Record Authenticated Copy of Will, Foreign Wills; Petition Estate Administration; Petition Administration of Person Not Heard From; Petition Guardian, Foreign Guardian or Conservator (RSA 464-A); Motion Prove Will in Common and/or Solemn Form (administration required); Motion to Re-examine Will  $100.00

 

Petition Termination of Parental Rights; Petition Appoint Trustee; Petition Involuntary Admission; Petition Guardian Minor Estate and Person and Estate (RSA 463); Petition Guardian of Incompetent Veteran (RSA 465)  $75.00

 

Petition Adoption, includes one certificate (no entry fee when accompanied by a petition for termination); Motion successor Trustee, Administrator, Executor, or Guardian of Estate and Person and Estate (RSA 463)(RSA 464-A); All Fiduciary Accounts; Motion to Reopen (estate administration)  $50.00

 

Administration of Small Estates (Voluntary Administration); Petition Change of Name (includes one certificate); Petition Guardian Minor Person (RSA 463); Marriage Waiver (includes certificate/attested copy); Petition Change of Venue (includes authenticated copy fee); Motion Successor Guardian of Person (RSA 463)(RSA 464-A); Motion Sue on Bond; Motion Remove Fiduciary; Motion Fiduciary to Settle Account  $25.00

 

ENTRY FEES INCLUDE:

 

Preparation and issuance of Orders of Notice, Notice, Copies of Decrees, mailing costs, citation to newspaper for publication, certificate to discharge surety.

 

ENTRY FEES DO NOT INCLUDE:

 

            Notice by publication:  This fee shall be paid by the Party or the Attorney for the Party from whom the notice is required.  The cost of publication shall be determined by the Register of each county.  The request may require that payment be made directly to the publisher of the notice.

            In-hand service:  If service by a law enforcement officer is required, the Party or the Attorney for the Party from whom the notice is required shall pay the cost of service appropriate county sheriff's department.

            Additional copies:  If additional copies of any document, or additional certificates are requested beyond those included in normal processing as indicated above, the Party or the Attorney for the Party requesting the additional copies shall pay the costs in advance as indicate under "Certificates & Copies."

 

OTHER:

 

Defaults (RSA 548:5-a)   $25.00/each occurrence

Citations/show cause

            (RSA 548:5-a and 550:2)            $50.00/each occurrence

 

Duplicate Audio Tape     $25.00/each tape

 

CERTIFICATES & COPIES:

 

Certificates                                $5.00

Certification       $5.00 plus copy fee

Photocopy of Will           $1.00/page

All other copied material$ .50/page

Authenticated Copy of Probate    $25.00/each

 

"Certificates & Copies" shall apply to individual requests for the above services, requests for additional certificates beyond those provided with the original entries and requests for additional copies beyond those provided with the original entry fees.

 

 

Rev. 1 - 03/04/1997               

Rev. 2 - 03/18/1997

FINAL - 06/07/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 169 addresses fees in the Superior Court.  The Committee adopted the Probate Court Fee schedule found in current Probate Court Rule 48, with modifications, as proposed Probate Court Rule 169.

2.         Consistent with proposed Probate Court Rule 2, the Committee replaced "Petition" with "Motion" where applicable.

3.         The Committee discussed the current exemption for minor accounts.  The Committee omitted "no fee shall be charged for accounts under RSA 463," from the fee schedule.

4.         The Committee replaced "Motion to Bring Forward" with "Motion to Reopen," since it is more applicable Probate Court practice.

5.         The Committee included the cost for a duplicate audio tape.

 

 

 

 

RULE 170:  ALTERNATIVE DISPUTE RESOLUTION

 

  (a) Cases for Alternative Dispute Resolution Procedures.  Contested cases, with the exception of cases submitted by the Parties to private dispute resolution, may be assigned to ADR at the discretion of the Court.

  (b) Election of Specific Alternative Dispute Resolution Procedure.  At the structuring conference pursuant to Rule 62, Attorneys shall select the ADR procedure desired.  If the parties have elected to submit the case to private dispute resolution, the structuring conference order should so note and the case will not be assigned to a Rule 170 ADR proceeding.  If the Attorneys cannot agree on the ADR procedure, the ADR procedure with the lowest numerical value selected by an Attorney for any Party shall be the procedure utilized.  The four ADR procedures are:

            (1) Neutral evaluation;

            (2) Mediation;

            (3) Non-binding arbitration;

            (4) Binding arbitration.

  (c) Order of Alternative Dispute Resolution Procedure.  The order referring the case to the specific ADR procedure will be contained in the structuring conference order followed by a date and time assignment order (hereinafter Court Order for ADR) issued by the Court at least thirty (30) days in advance of the assignment date.  Proceedings shall be scheduled in accordance with the availability of court resources.  ADR proceedings shall not stay, alter, suspend, or delay pretrial discovery, Motions, hearings, or conferences nor the requirements and time deadlines of New Hampshire Probate Court Rules 62 and 63.

  (d) Neutrals.

            (1) All neutrals (neutral evaluators, mediators, arbitrators) shall be Attorneys approved by the Court.  In approving neutrals,

the Court may consider length of practice, trial experience, and alternative dispute resolution experience.

            (2) Upon receipt of notice of appointment in a case, the neutral shall disclose any circumstances likely to create a conflict of interest, the appearance of a conflict of interest, a reasonable inference of bias, or prevent the process from proceeding as scheduled.  If the neutral withdraws, has a conflict of interest, or is otherwise unavailable, another shall be appointed by the Court.

  (e) Role of Neutral.  The litigants and their Attorney must recognize that the neutrals will not be acting as legal advisors or legal representatives.  They must further recognize that, because the neutrals are performing quasi-judicial functions and are performing under the umbrella of the Court, each such neutral has immunity from suit.

  (f) Inadmissibility of Alternative Dispute Resolution Proceedings.

            (1) ADR proceedings under this rule, with the exception of binding arbitration, are nonbinding and shall not impair the right of the litigants to demand a trial.  ADR proceedings and information relating to those proceedings shall be confidential.  Information, evidence, or the admission of any Party or the valuation placed on the case by any neutral shall not be disclosed or used in any subsequent proceeding.  Statements made and documents prepared by a Party, Attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any Court or arbitrator or construed for any purpose as an admission against interest.  All nonbinding ADR proceedings are deemed settlement conferences as prescribed in the Probate Court Rules and Rules of Evidence.  In addition, the Parties shall not introduce into evidence in any subsequent proceeding the fact that there was an ADR proceeding or any other matter concerning the conduct of the ADR proceedings.

            (2) There shall be no record made of any proceedings under these ADR procedures.

            (3) Evidence that would otherwise be admissible at trial shall not be rendered inadmissible as a result of its use in an ADR proceeding.

  (g) Specific ADR Election.

            (1) Neutral Evaluation.  Neutral evaluation shall consist of an informal, abbreviated presentation of case facts and issues by all Parties to a neutral evaluator who is responsible for evaluating the strengths and weaknesses of the case and assigning a dollar value or range.  If neutral evaluation is selected, the Court order for ADR shall provide the Parties with the neutral evaluator's name and address, the time, date, and place of the evaluation conference, and the date by which the Parties shall furnish the neutral evaluator with the required information and documentation.

            By the date specified the Parties shall submit to the neutral evaluator and exchange a summary of the significant aspects of their case.  The Parties shall attach to the summary copies of all documents on which they rely.  Such summaries shall be not more than four (4) pages.

            Upon receipt of a Party's submission, any Party may send additional information responding to that submission.  All such responsive submissions shall be exchanged with opposing Attorney and shall contain a statement of compliance with the exchange requirement.

            Except as provided above, Parties shall not communicate with the neutral evaluator concerning their case.

            At the evaluation conference, all Parties and Attorneys and, in the event there is insurance involved, an insurance representative, shall be present and those present shall have authority to authorize settlement.

            If the neutral evaluator deems it necessary, he or she may request additional written information from any Party.  At the evaluation conference, the evaluator may address questions to the Parties and give them a brief opportunity to complement their summaries with a brief oral statement.

            The neutral evaluator will issue an oral Report of Award to the Parties.  The Report of Award shall contain a suggested settlement or disposition and the reasons therefor.  The neutral evaluator shall advise the Court that the evaluation conference has taken place.  Following the issuance of the oral Report of Award by the evaluator, the Parties may elect to have the case referred to mediation or have the neutral evaluator attempt to mediate a settlement.

            (2) Mediation.  Mediation shall consist of and be limited to a session or sessions with the Parties and their Attorney to facilitate a settlement acceptable to the parties.  The mediator does not have the authority to render a decision or impose a settlement on the Parties.  If mediation is selected, the Court Order for ADR shall provide the Parties with the mediator's name and address and the time and date for the session.  The session shall be conducted at a Courthouse, unless otherwise ordered by the Court.

            Not later than ten (10) days prior to the session the Parties shall submit to the mediator and exchange a summary of the significant aspects of their case. The Parties shall attach to the summary copies of all documents on which they rely.  Such summaries shall be not more than four (4) pages.

            Upon receipt of a Party's submission, any Party may send additional information responding to that submission.  All such responsive submissions shall be exchanged with the opposing Attorney and shall contain a statement of compliance with the exchange requirement.

            At the mediation session, all Parties and their Attorney and, in the event that there is insurance involved, an insurance representative, shall be present and those present shall have authority to authorize settlement.

            To insure that Parties openly, freely, and candidly discuss the strengths and weaknesses of their positions with the mediator, information provided to the mediator in private discussion shall be confidential and shall not be divulged to the opposing side unless specifically authorized.

            If resolution cannot be achieved on the date assigned, the mediator is authorized to continue the mediation process, either with additional in-person mediation sessions or telephone conferences.  Within thirty (30) days of the initial mediation session, the mediator shall file a report with the Court advising that the case has been settled, that mediation is ongoing, or that mediation failed to resolve the dispute.  If mediation is ongoing, the mediator shall file a final report within three (3) days of the final mediation session.  Upon notification to the mediator that the action has been settled, the Parties shall file docket markings pursuant to Rule 51.

            (3) Nonbinding Arbitration.  Nonbinding arbitration shall consist of and be limited to one hearing before the arbitrator.  At such hearing, each Party shall be limited to one (1) hour to present his or her case.  Direct examination and cross-examination shall be limited to the parties or their representatives.  The arbitrator may also ask questions.  The formal Rules of Evidence shall not apply.  The arbitrator may permit closing arguments which shall be limited to five (5) minutes.  If nonbinding arbitration is selected, the Court Order for ADR shall provide the Parties with the arbitrator's name and address and the date and time of the hearing.  The hearing shall be conducted at a Courthouse, unless otherwise ordered by the Court.

            Not later than ten (10) days prior to the hearing the Parties shall submit to the arbitrator and exchange a summary of the significant aspects of their case.  The Parties shall attach to the summary copies of all documents on which they rely.  Such summaries shall be not more than four (4) pages.

            Upon receipt of a Party's submission, any Party may send additional information responding to that submission.  All such responsive submissions shall be exchanged with the opposing Attorney and shall contain a statement of compliance with the exchange requirement.

            At the hearing, all Parties and their Attorney and, in the event that there is insurance involved, an insurance representative, shall be present and those present shall have authority to authorize settlement.

            Within five (5) days after the hearing, the arbitrator shall file a Report of Award with the Court.  The Report of Award shall include a brief explanation of the reasons therefor.  The Court shall furnish the Attorneys with a copy of the Report of Award.

            The arbitrator's award, unless appealed from as hereinafter provided, shall be final and shall have the attributes and legal effect of an order.  If no appeal is taken within the time and in the manner specified therefor, the Court shall enter judgment in accordance therewith.  In the event the arbitrator's award becomes final, the award may be used in the same manner and to the same extent as any final judgment in the Probate Court.  Any Party may appeal from the award of the arbitrator to the Probate Court within thirty (30) days after the date of the Register's written notice of the award. If a timely appeal is filed from the award, the case shall be restored to the trial docket.

            (4) Binding Arbitration.  Arbitration hearings shall be conducted as administrative adjudications governed by New Hampshire RSA Chapter 541-A.  The arbitrator(s) shall be vested with all the powers and shall assume the same duties granted and imposed upon arbitrator(s) by New Hampshire RSA Chapter 542.

            The proceeding shall follow a trial format with opening and closing arguments and direct and cross-examination of witnesses.  The arbitrator(s) may also ask questions.  Each Party's presentation shall be limited to two (2) hours for the case in chief and one (1) hour for cross-examination and rebuttal, provided however, for good cause shown the time may be enlarged for either Party.  Any Person that possesses relevant and material information may testify subject to the time limitations imposed.  If there is one arbitrator, that arbitrator shall be the judge of the relevancy, materiality, and general admissibility of the evidence, and of all questions of procedure.  The chair of a three (3) member arbitration panel shall preside at the hearing and shall be the judge of the relevancy, materiality, and general admissibility of evidence, and of all questions of procedure.

            If binding arbitration is selected, the Parties may elect a single or three (3) Person panel.  If a single arbitrator is requested, the Court will issue to each Party a list of five (5) arbitrators.  Each Party will strike one name from the list and rank the remaining four, with 1 being the first choice, 2 the second, etc.  The Person receiving the lowest total score shall be the arbitrator.  In the event of a tie score, the Register shall choose the arbitrator from those whose scores are tied.  In the event the Parties cannot agree on the panel's size, the panel shall be comprised of three (3) arbitrators.  A three (3) member arbitration panel shall be selected by each Party selecting a neutral approved by the Court.  The two (2) members so selected shall jointly select the third member from the pool of neutrals approved by the Court, or absent agreement, the third member shall be chosen by the Register.  The third member so selected shall be chair of the panel.  In the event that both sides select the same neutral, the binding arbitration shall be conducted with the Person so selected as a single arbitrator.  In extraordinary and unusual circumstances and upon application of both Parties and approval of the Administrative Judge of the Probate Court, a Judge of the Probate Court may be assigned to conduct a binding arbitration.  The hearing shall be conducted at a Courthouse, unless otherwise ordered by the Court.

            Not later than ten (10) days prior to the hearing the Parties shall submit to the arbitrator or arbitrators and exchange a summary of the significant aspects of their case.  The summary shall be not more than four (4) pages.  Parties shall attach copies of all documents on which they rely.  All such summaries shall include a stipulation or, if the Attorneys cannot agree, a separate statement by each Party setting forth the following information:

            (i)         Uncontested facts;

            (ii)         Contested facts;

            (iii)        Applicable law;

            (iv)        Disputed issues of law;

            (v)         Specific claims of damages by each Party making such claim;

            (vi)        Specific defenses to damages by each Party asserting such defenses;

            (vii)       An itemized statement of damages by each Party claiming such damages and the value of each of those damages;

            (viii)       Deposition transcripts of all experts

            (ix)        If all Parties agree, the most recent demand and offer.       Without agreement, information about the final offer and demand shall not be communicated in writing or during any oral presentation.

            Upon receipt of a Party's submission, any Party may send additional information responding to that submission.  All such responsive submissions shall be exchanged with the opposing Attorney and shall contain a statement of compliance with the exchange requirement.

            Within five (5) days after the hearing, the arbitrator or arbitrators shall file with the Court a Report of Award which shall include a brief explanation of the reasons therefor.  Two (2) members of a three (3) member arbitration panel must agree upon the final Report of Award in order for the award to be valid and binding.  The Report of Award shall be signed by the arbitrator or the agreeing arbitrators.  If there is a dissent, it shall be signed separately.

            If the Parties have elected binding arbitration, the Report of Award shall be final and binding on the Parties and shall have the attributes and legal effect of an order.  The Court shall enter judgment in accordance therewith.

  (h) Default and Sanctions.  If a Party fails to appear at a proceeding under this rule or fails to participate in such proceeding in good faith, the neutral shall so report to the Court, which in its discretion may, after hearing, assess reasonable costs, Attorney fees, or other sanctions against that Party. In the case of a three (3) member arbitration panel, the word "neutral" as used in this section shall refer to the chair of the panel.

 

 

Rev. 1 - 04/18/1997

Rev. 2 - 01/27/1999

FINAL - 03/03/1999

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 170, with modifications, as proposed Probate Court Rule 170.

2.         The Committee replaced "shall be assigned to ADR" with "may be assigned to ADR" to reflect the discretion of the Probate Court in exercising this option.  As a result, the Committee omitted paragraph (a)(2) which addressed the date on which ADR became mandatory for all cases in the Superior Court.

3.         The Committee replaced “verdict” with “order.”

4.         The Committee replaced "Clerk" with "Register."

5.         The Committee omitted the second sentence of the Superior Court Rule 170 (g)(4) since RSA 542 vests jurisdiction in the Superior Court.  However, the Committee retained the third sentence of Superior Court Rule 170 (g)(4) as it relates to the general powers and duties of arbitrators.

6.         The Committee combined "vii" and "viii" relating to claimed damages and their values in paragraph (g)(4).

 

 

 

 

RULE 170-A:  ARBITRATION BY AGREEMENT

 

  (a) Cases for Arbitration.  All cases will be assigned to arbitration upon agreement of the Parties.  In all cases so assigned subject to arbitration, the presiding Judge of the Court shall appoint Attorneys to serve as arbitrators on three member panels.

  (b) Hearings: When and Where Held; Notice.

            (1) Hearings shall be held at a place designated by the Court.  The Parties or their Attorneys shall be notified in writing, at least thirty (30) days before the hearing, of the time and place of the hearing.  No hearings shall be fixed for Saturdays, Sundays, legal holidays or evenings.

            (2) Once a hearing date is set, unless the Parties file docket markings indicating that the case has been settled or otherwise finally disposed of, the hearing shall proceed at the scheduled time.  Any such docket markings shall be filed with the Court.  There shall be no communications by the Parties or by the Attorneys with the arbitrators concerning the merits of the controversy prior to the date scheduled for the hearing, unless all Parties and their Attorneys are present.

            (3) Unless excused by the arbitrators, all Parties shall be present and those present shall have authority to authorize settlement.

  (c) Postponement of Arbitration.  In the event that any Party or their Attorney for good cause shown is unable to proceed, the Court may reschedule the case.

  (d) Default and Sanctions.  Upon failure of a Party to appear at a scheduled arbitration hearing or to participate in good faith in the proceedings, a default judgment shall be entered, and reasonable costs and attorney's fees may be assessed against that Party.  Default judgments may only be contested by the filing of a motion to strike default setting forth specific grounds therefor within ten (10) days of the mailing of the notice of default.

  (e) Case Summary.

            (1) All Parties shall submit and exchange not later than ten (10) days prior to the arbitration hearing a double-spaced typewritten summary of not more than four (4) pages upon 8 1/2 " x 11" paper of the significant portions of their case with photocopies of all essential documents attached.

            (2) All such summaries shall contain a written stipulation, or, if the Attorney cannot agree to file a stipulation, a separate statement by each Party, setting forth the following information:

            (i)         All uncontested facts;

            (ii)         All contested facts;

            (iii)        Pertinent applicable law;

            (iv)        Disputed issues of law;

            (v)         Specific claims of liability by each Party making such claims;

            (vi)        Specific defenses to liability by each Party asserting such defenses;

            (vii)       An itemized statement of damages by each Party claiming such damages and the value of each of those damages;

            (viii)       A statement as to whether settlement has been explored and, if so, the most recent demand and offer, and what is the likelihood of settlement.

            (3) All such summaries shall contain a statement of compliance with the exchange requirement.

            (4) The purpose of the case summary submission is to apprise the arbitrators of the issues in dispute.

  (f) Presentation of Evidence; Witnesses.

            (1) All evidence shall be presented through the Attorneys for the Parties or Pro Se Parties.  Each Attorney or Pro Se Party shall be given twenty (20) minutes to present that Party's view of the circumstances of the case, and five (5) minutes for a statement in rebuttal. Upon a showing of good cause, the Court in its discretion may allow additional time for the Parties to present their cases.  Any request for additional time must be set forth in a Motion not later than ten (10) days prior to the scheduled arbitration hearing.

            (2) No live testimony shall be permitted in the ordinary course of the arbitration hearing unless, upon a showing of good cause, the Court in its discretion allows such live testimony.  If live testimony is permitted, the Parties are nevertheless bound by the time limitations set forth in subsection (f)(1) of this Rule.  Attorneys and Parties appearing Pro Se are encouraged to submit affidavits of necessary witnesses with the case summary submitted under section (e).

            (3) The arbitrators shall be the judges of the relevancy and materiality of the evidence offered.  All evidence shall be taken in the presence of the arbitrators and of all the Parties, except where any of the Parties is excused from attending or is in default.

  (g) Transcript of Testimony.  No record of the proceedings shall be permitted except in extraordinary circumstances, as determined by the arbitrators.

  (h) Report of the Award.  Within three (3) days after the hearing, the arbitrators shall file a Report of the Award with the Register that shall not be required to include findings and rulings, but that shall briefly set forth the basis for the decision.  The arbitrators' award shall include in bold-face type the following statement of the right to appeal:

"Any Party may appeal from this award to the Court within thirty (30) days after the date on the Register's written notice of the award by filing a notice of such appeal with the Register of the Court.  Copies of such notice shall be sent by first class mail to opposing parties or their Attorneys.  Unless appealed, the award is final."

  (i) Legal Effect of Report and Award;  Entry of Judgment.  The report and award, unless appealed from as herein provided, shall be final and shall have the attributes and legal effect of an order.  If no appeal is taken within the time and in the manner specified therefor, the Court shall enter judgment in accordance therewith.  After entry of such judgment, execution process may be issued as in the case of other judgments.

  (j) Right of Appeal; Restoration to Active List; Inadmissibility of Arbitration Proceedings.

            (1) Any Party may appeal from the action of the arbitrators to the Probate Court within thirty (30) days after the date on the Register's written notice of the award.  A copy of such notice of appeal shall be sent by first class mail to opposing Parties or their Attorneys.  If an appeal is filed from an arbitration award, the case shall forthwith be restored to the trial docket.

            (2) In the event an appeal is taken, neither the arbitrators nor any other Person shall be called as a witness to testify what took place in the arbitration hearing.  In such event, the documents relating to the arbitration hearing and the evidence presented therein shall be sealed and shall not be admissible on appeal, except for such evidence as is otherwise admissible at trial under the rules of evidence.

            (3) In the event the arbitration award becomes final in accordance with section (i) the decision may be used in the same manner and to the same extent as any final judgment in the Probate Court.

 

 

Rev. 1 - 03/03/1999

Rev. 2 - 05/20/2000

FINAL - 12/14/2000

 

 

COMMITTEE COMMENTARY:

 

1.         The Committee adopted Superior Court Rule 170-A, with modifications, as proposed Probate Court Rule 170.

2.         The Committee combined "vii" and "viii" relating to claimed damages and their values in paragraph (e)(2).

3.         The term "served" implies service would be made by a sheriff.  The Committee replaced "sent by first class mail to" with "served on."

4.         The Committee replaced “verdict” with “order.”

5.         The Committee replaced "Clerk" with "Register."

 

 

 

 

RULE 171:  [Reserved for Future Use]

 

 

FINAL - 05/22/2000

 

 

COMMITTEE COMMENTARY:

 

1.         Superior Court Rule 171 addresses summary jury trial.  As this rule is not applicable to the Probate Court, the Committee decided to reserve proposed Probate Court Rule 171 for future use.