[WSBAPT] Probate discovery v. TEDRA discovery

Thu Aug 17 12:24:17 PDT 2023

Eric,

So how to get the court to rule that the Civil Rules do not apply?

I have argued CR 1 and Grasser v. Blakkolb many times over the years in the core probate administration (not a related TEDRA).

Most recently on whether a party was entitled to a Protective Order on certain materials provided to the PR.

And, of course, more complications then arise and you spend the next six months arguing about how the CRs apply when the CR should never have been an issue.  Exasperation!

My argument is almost always rejected on the basis of "Well, that may be true Mr. Moen but I'm going to apply the CR anyhow because everyone knows the CRs and it will provide guidance as we move along."  I even had a Constitutional Commissioner (who should know better) reply "I wouldn't
 know how to proceed without the CR."

Is your experience different?  How do you turn them around?

  Bruce Moen
________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Eric Nelsen <eric at sayrelawoffices.com>
Sent: Thursday, August 17, 2023 11:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate discovery v. TEDRA discovery

I think RCW 11.96A.115(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.115> controls and no discovery is permitted in an ordinary probate administration, without first getting leave of court. On the occasions when I’ve wanted to issue subpoenas to recalcitrant banks et al., I submit an Ex Parte motion to get authority first. I don’t think anyone is entitled to notice of the motion so I generally have my Order the same day.

The alternative method I have used is under the general authority of RCW 11.48.020<https://app.leg.wa.gov/RCW/default.aspx?cite=11.48.020>, the PR’s right to possession and control of all property of the decedent. That “property” includes the decedent’s contractual rights with the bank, which includes decedent’s contractual right to receive information concerning the account, periodic statements, etc. So, instead of subpoena power, I have sometimes submitted an Ex Parte motion for an order commanding a specific bank to turn over particular documents and information by a deadline. Basically like a subpoena, but it’s a direct order by the court instead.

More generally: After many years of going back and forth I now think that none of the Civil Rules apply to a probate administration in any respect, unless they are specifically invoked or incorporated by a probate statute. Though I do use them as a template for taking certain actions in probate—for example, I follow CR 70.1 and CR 71 when appearing or withdrawing for a party to a probate administration. Even if it’s not technically applicable, it’s sure to be applied by analogy by any judge analyzing whether or not I have properly appeared or withdrawn from representing a client.

CR 1 and CR 81 make the Civil Rules apply to “civil proceedings.” I’ve never seen a definition of that, but I now think that it means only litigation matters. Probate administration is solely an administrative matter under the court’s equitable jurisdiction, and is not a “civil proceeding” except in the more general sense that it is a non-criminal proceeding.

The WSBA Civil Procedure Deskbook (3d ed. 2014), Ch. 1.6, states:

Although CR 1 applies by its terms to only civil actions, courts have suggested that the civil rules might be instructive in other contexts. In In re Estate of Toth, 138 Wn.2d 650, 655-67, 981 P.2d 439 (1999), for example, the court discussed, without deciding, the possibility that CR 6(e) could apply to probate filing periods. But see Grasser v. Blakkolb, 12 Wn.App. 529, 530 P.2d 684 (1975), review denied, 85 Wn.2d 1005 (1975) (holding that the rejection of a claim in a probate matter is not a civil suit for purpose of CR 1, which restricts the application of Superior Court Civil Rules to suits of a civil nature). Ultimately, the Toth court decided that even if the civil rules did apply to probate actions, rule 6(e) would not apply by its terms to the issue on appeal. Estate of Toth, 138 Wn.2d at 651.

Sincerely,

Eric

Eric C. Nelsen

Sayre Law Offices, PLLC

1417 31st Ave South

Seattle WA 98144-3909

206-625-0092

eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Dalynne Singleton
Sent: Thursday, August 17, 2023 11:06 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probate discovery v. TEDRA discovery

I have reviewed RCW 11 and 11.96A and I know and have done discovery in TEDRA as discovery is allowed which encompasses subpoena powers, issuing subpoena duces tecum, deposition, interrogatories, etc.

BUT, in a probate cause – what discovery is allowed?

In probate (not TEDRA), I have had occasion to issue a SDT to a bank and send to all counsel/heirs to object under CR 45.  If no objection, then I issue the SDT and get bank records, usually to discover if JWROS, TOD accounts, access to bank records of decedent, etc.  I remember awhile back, someone posted authority that they believed there is no discovery allowed in probate w/o court order but can’t find that old post.

Anyone have an opinion on this issue and how you approach needing records in a probate cause?

Dalynne Singleton

Gourley Law Group

Snohomish Escrow

The Exchange Connection

1002 10th Street / PO Box 1091

Snohomish, WA 98291

360.568.5065

360.568.8092  fax

dalynne at glgmail.com<mailto:dalynne at glgmail.com>

Website:  www.glglawgroup.com<http://www.glglawgroup.com/>

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