the new supreme court orphans’ court rules · 9/1/2016 · top 10 changes 10. rules of evidence...
TRANSCRIPT
THE NEW SUPREME COURT ORPHANS’ COURT RULES
POWERPOINT PRESENTATION BY JOHN F. MECK, Eckert Seamans Cherin & Mellott, LLC LISA M. RHODE, Gadsden Schneider & Woodward, LLP
GUESS WHO?
2
GUESS WHEN?
Gerald Ford - President of the United States and Milton Shapp - Governor of Pennsylvania
3
ANOTHER HINT:
4
ANSWER: 1975
The last time the Supreme Court Orphans’ Court Rules were revised
5
Rules of Equity Repealed January 1, 2004
Why Important??
Current Rule 3.1
6
PURPOSE OF NEW ORPHANS’ COURT RULES STANDARDIZE PRACTICE ACROSS
ALL JUDICIAL DISTRICTS
Except for differing procedures for Accounts and Objections in judicial districts
(See Rule 2.5(d), (e) and 2.7(a)) With separate orphans’ court divisions
(See PEF Code 3511)
vs
Without separate orphans’ court divisions (PEF Code 3512)
7
PURPOSE OF NEW ORPHANS’ COURT RULES
PROVIDE CLEAR PROCEDURES TO THE BENCH AND BAR
8
PURPOSE OF NEW ORPHANS’ COURT RULES
HARMONIZE PROCEEDINGS TO CIVIL PRACTICE
9
TWO IMPORTANT DATES
September 1, 2016 Effective Date of New Rules Repeal of Most Local Rules June 1, 2016 Deadline to Submit New Local Rules
10
THURSDAY, SEPTEMBER 1, 2016
Current Supreme Court Orphans’ Court Rules 1 to 13 are RESCINDED
o ALL PARALLEL LOCAL RULES ARE
VACATED.
11
THURSDAY, SEPTEMBER 1, 2016 What remains???
Current Supreme Court and Local Rules:
Chapter 14: Guardianships
Chapter 15: Adoptions
Chapter 16: ACA
12
THURSDAY, SEPTEMBER 1, 2016
NEW RULES: CHAPTER I. Preliminary Rules
CHAPTER II. Accounts, Objections and Distributions
13
THURSDAY, SEPTEMBER 1, 2016
NEW RULES: CHAPTER III. Petition Practice and Pleading
CHAPTER IV. Format and Service of Legal Paper by
Parties and Court; Electronic Filing
CHAPTER V. Rules Governing Specific Types of Petition (This chapter relocates current Rule 12.) 14
THURSDAY, SEPTEMBER 1, 2016
NEW RULES: CHAPTER VII. Rules Relating to Pre-Hearing and
Hearing Procedure
CHAPTER VIII. Reconsideration
CHAPTER IX. Auditors and Masters
CHAPTER X. Register of Wills
15
WHAT TO DO WITH LOCAL RULES?
Eliminate most current local Rules
BUT retain or revise some
Conform to new numbering
16
RULE 1.5: PROCEDURE FOR ADOPTING LOCAL RULES New Local Rules from Judicial District X
To OCPRC for review
BEFORE can become effective 17
CIRCLE JUNE 1, 2016 Deadline for new/revised local rules
Send to OCPRC by JUNE 1, 2016
18 OCPRC to review so not inconsistent with new S.C.
Rules
PROPOSED LOCAL RULES AFTER SEPTEMBER 1, 2016
New or amended local rule
To OCPRC for review under same standard
19
TOP 10 CHANGES
10. Rules of evidence in Register of Wills Hearings (See Rule 10.3(e))
9. Virtual representation - Accounts and Petition Practice
(See Rules 2.4, 3.4 and 4.2)
8. Local Rules must be reviewed by OCPRC (See Rule 1.5)
20
TOP 10 CHANGES
7. Preliminary Objections permitted; Preliminary Objections to Account Objections limited
(See Rules 2.8 and 3.9)
6. Notice to Plead Affixed to Notice Petition and Response with New Matter and New Matter
(See Rule 3.5(b)(1) and 3.7(e))
5. Objections and Response to all interested parties (See Rules 2.7(a) and 3.7(b))
21
TOP 10 CHANGES
4. Notice of an Account’s filing – Changes (See Rule 2.5)
3. Petition for Adjudication must be filed with Account (See Rule 2.4(a))
2. Supreme Court forms Exclusive (See Rules 1.8 and 10.1)
1. Petitions for Reconsideration replace Exceptions (See Rules 8.1 and 8.2)
22
WHAT TO DO WHEN YOUR CLIENT DOES NOT LIKE COURT’S DECISION
First, Orphans’ Court Clerks need to give notice to each party (or counsel). Analogous to Civ. Rule 236 Starts clock running for appeal Second
EXCEPTIONS 23
See NEW Rule 8.1
REPLACING EXCEPTIONS MOTIONS FOR RECONSIDERATION Rule 8.2
BE CAREFUL – 30-DAY APPEAL PERIOD CONTINUES RUNNING
24
MORE BIG CHANGES:
Exclusive use of Supreme Court approved Forms (See Rules 1.8 and 10.1)
OC-01 to OC-07 RW-01 to RW-10
OCPRC Making Conforming Revisions to Forms
25
NO MORE LOCAL FORMS WHERE A SUPREME COURT FORM EXISTS
Petitions for Adjudication
Register of Wills
Guardianships and ACA Proceedings
26
ACCOUNT AND PETITION FOR ADJUDICATION MUST BE FILED TOGETHER
THE ACCOUNT THE PETITION
FOR ADJUDCIATION
27
See Rule 2.4
NOTICE ACCOUNT’S FILING – WHEN – RULE 2.5 Current practice –local rule
Some Counties 10, 15 or 20 days before audit 10 days after filing Account in one county
New Rules
Separate orphans’ court divisions – 20 days before audit
Without separate orphans’ court divisions – 20 days before the last day to file objections
(See Rule 2.5(d)) 28
SOME CHANGES IN WHO RECEIVES NOTICE
WHO GETS NOTICE of Account’s filing????? (See Rule 2.5(a))
Language clarified
E.g., Rule 2.5(a)(1) notice of a creditor’s claim
Charitable interest - Rule 2.5(a)(4) added reminder
Rule 2.5(b) to both counsel and the individual, even if represented
29
SOME NEW RECIPIENTS GET NOTICE AS WELL
Beneficiaries of a “receiving” trust or estate if dual fiduciaries (See Rule 2.5(b))
AG’s Office (See Rule 2.5(c))
charity is beneficiary of “receiving” estate charity is a qualified trust beneficiary
30
WHAT MUST BE INCLUDED WITH NOTICE LETTER
Beneficiary/ Counsel
Notice Letter of account’s
filing
Petition for Adjudication
Account
31
See Rule 2.5(d)
UNLESS . …
1) Special Order from Orphans’ Court
(Voluminous Account???)
2) Trust beneficiary is more remote than a qualified beneficiary under 20 Pa.C.S. 7703
32
CONTENT OF NOTICE LETTER
(See Rule 2.5(h))
1) Date, time, and place of audit or in judicial districts that do not have an audit list, last day for filing objections
2) Accountant’s position on known disputes or interpretation question
3) Detail Accountant’s understanding of contested or unpaid claim
4) State how recipient is to present objections to Account or Petition for Adjudication
33
CONTENT OF NOTICE LETTER
5) To beneficiary not receiving Account and Petition for Adjudication, state amount of fiduciary compensation and attorney fees paid or to be paid
34
PROCEDURES FOR OBJECTIONS
Objections All interested
parties
Orphans’ Court Clerk
Accountant and his/her
counsel
Mailed 35 This is NEW
See Rule 2.7
PLEADINGS AFTER OBJECTIONS ARE FILED (See Rule 2.8)
Answers – Allowed but not required
Preliminary Objections Allowed but limited to two grounds (See Rule 2.8(b))
Lack of standing
Lack of jurisdiction
Answers to Preliminary Objections
36
CHAPTER X: PROCEEDING BEFORE REGISTER OF WILLS
Supreme Court forms only: RW-01 et seq. (See Rule 10.1)
Rules of Evidence apply in Register’s hearings (See Rule 10.3(c))
Chapter III (Petition Practice) applies to Register’s Hearing
(See Rule 10.2) 37
CHAPTER X: PROCEEDING BEFORE REGISTER OF WILLS
Rule 10.5 replaces Rule 5.6
Rule 10.6 replaces Rule 6.12
Fee for filing Certification of Notice and Status
Report not prohibited - NEW
38
CHAPTER III: PETITION PRACTICE
If not proceeding by Objections to an Account
Conform Orphans’ Court petition practice to civil division procedure
39
SUMMARY OF CHAPTER III General Rules that apply to all Pleadings
Rule 3.2 (Captioning), Rule 3.3 (General and Specific
Averments), and Rule 4.1 (Format)
Rule 3.12 (Signing) and Rule 3.13 (Verification)
Rule 3.14 (Amendment) and Rule 3.15 (Alternative Pleading)
40
SUMMARY OF CHAPTER III
Rules specific to Petition
Rule 3.4 (Contents of Petition and Exhibits/Consents)
Rule 3.5 (Citation Petition v. Notice Petition)
41
SUMMARY OF CHAPTER III Rules specific to Responsive Pleadings
Rule 3.6 (Pleadings Allowed) and Rule 3.8 (Headings)
Rule 3.7 (Time for Filing and Service of Responsive Pleadings)
Rule 3.9 (Preliminary Objections)
Rule 3.11 (Raising new matter in Answer)
Rule 3.10 (Denials in Answer)
42
RULE 3.5: CITATION V. NOTICE PETITION Citation Petition
When personal jurisdiction needed Not previously obtained Not conferred by statute
Service of citation: original process (Rule 3.5(b)(1))
Follow civil rules – personal service By any adult individual
See PEF Code 765 – sheriff not needed
43
RULE 3.5: CITATION V. NOTICE PETITION Notice Petition
When personal jurisdiction not required Or jurisdiction previously obtained
Service of Notice Petition –regular mail
Regular mail, postage prepaid Notice to Plead Affixed
Rule to Show Cause and Rule Returnables will be governed by Local Rule
44
RULE 3.6: PLEADINGS ALLOWED AFTER PETITION
An answer that can include new matter
A reply to new matter
Preliminary Objections– see Rule 3.9
Answer to Preliminary Objections
Petition to Join One or More Parties
45
RULE 3.9: PRELIMINARY OBJECTIONS PERMITTED
Preliminary Objections are broader than for an Account
Include all grounds under Pa.R.C.P. 1028 EXCEPT: (7) Failure to exercise or exhaust statutory remedy;
and (8) Full, complete, and adequate non-statutory
remedy
46
TIME AND SERVICE OF RESPONSIVE PLEADING
Time: 20 days
20 days after later of date of citation/notice or date of filing
If outside United States – 60 days
Responding to all subsequent filings – 20 days
47
TIME AND SERVICE OF RESPONSIVE PLEADING Who to serve (See Rule 3.7 (b))
Responsive Pleading
Mail to all other interested parties
identified in petition
Filed with OC Clerk
Mailed to Petitioner or
Counsel
48
This is a NEW requirement
SPECIFIC TYPES OF PETITION
Current Rule 12
Becomes Chapter
V
And Chapter V adds a new rule for Declaratory Judgment Petition
49
RULES FOR PRE-HEARING AND HEARING Discovery
Same as current rule. Controlled by local rule and specific court orders
New Rules Permit Motion for Judgment on Pleading (See Rule 7.2)
Motion for Summary Judgment (See Rule 7.3)
Injunction (See Rule 7.4)
50