Founding partner, Michael D. Rudy, discusses pleading practices in Hawaii’s Probate Courts.
One of the most difficult aspects of litigating trust and estate cases in Hawaii, particularly in their early stages, is the lack of guidance that the Hawaii Probate Rules provide a practitioner in dealing with a degree of specificity that is required in the initial petition. A poorly drafted petition is likely subject to dismissal or other adverse outcomes in the initial stages in the probate courts.
Any estate planner or litigation attorney who routinely practices in the Hawaii probate courts realizes that the Hawaii Probate Rules were enacted in 1995, with various amendments thereafter, and provide only a limited guide of the procedures of probate court litigation. This is despite the fact that will and trust cases are some of the highest fact-sensitive, complex cases that involve significant assets for individuals.
In the beginning stages of evaluating a case, a client and his or her counsel may be left solely with the ultimate end result of a trust or will that has left its client “out in the dark” as to the detailed facts that led to this result. For example, in embezzlement or undue influence case, there may be little to no knowledge as to how much was taken, how it was taken, and the exact mental or medical condition of the victim.
Often, the answer to these questions can only come after extensive and expensive discovery. For instance, medical records may have to be subpoenaed under HIPAA guidelines. Forensic psychiatrists or psychologists may have to be obtained to evaluate competency or consent issues at the time of the creation of the trust instrument. Various financial institutions will have to be subpoenaed to obtain bank statements, checks, and other financial information. Forensic accountants may have to be hired to summarize detailed financial information.
Rule 20 of the Hawaii Probate Rules allows the probate court to assign a contested matter to the civil trial calendar in circuit court, where formal discovery can begin. Although certain probate judges have circumvented this “contested case” procedure and allowed discovery to commence immediately upon filing a petition, each circuit court has employed its own approach. This leaves the petitioner in a “Catch 22” position where ultimately the cause of action legal theories cannot be fully developed until a petition is filed and a case is designated contested and extensive discovery is undertaken.
What is a practitioner to do? On occasion, our office has attempted to do prefiling discovery under the rules of civil procedure to attempt to obtain medical records, depose witnesses and obtain financial information in order to preserve evidence. Unfortunately, different judges view prefiling discovery in the circuit courts differently.
Making the matter more difficult is since 1996, some judges have taken the position that the case should be contained in the probate court and discovery should not be undertaken until mediation has failed. Alternatively, some judges have attempted to encourage the parties to conduct “mutual discovery” without court involvement. Sometimes this works, sometimes it doesn’t. It is this office’s experience that the more at stake, the less likely “mutual discovery” without formal discovery procedures in place work.
In summary, any attorney wishing to practice in the area of trust and estate litigation must carefully analyze their strategy prefiling. Simply filing a skeletal petition, and advising the client that they can amend later once the matter goes to the trial court, may be a dangerous proposition.