Rule 23 Matters When Ex Parte Proceedings Appropriate

COMMENTARY:

This rule establishes, for the guidance of counsel, the situations in which ex parte proceedings are appropriate.

Under paragraph (a) of this Rule 23, a petition may be granted when all persons entitled to notice of the petition join in the petition; this may differ from persons described as "interested persons" under HRS § 560:1-201 either because a statute may not require notice to all interested persons (for example, see HRS § 560:-403(a) which requires notice to certain individuals but not to creditors), or because the particular matter being heard does not affect the interests of a person who is statutorily defined as an interested person (for example, an unpaid creditor remains an interested person until his or her claim is resolved, but that interest is not affected by a challenge to the validity of a will or codicil since it matters not to the creditor whether the debtor/decedent died testate or intestate. It must be kept in mind that a person who is an interested person at the outset of a probate may lose his or her status as such when his or her interest has been resolved. For example, a specific devisee who has received his or her devise or an heir who is not a beneficiary of a will is an interested person at the hearing on the petition for probate, because denying the petition and declaring an intestacy will result in an inheritance passing to the heir. Such an heir loses his or her status as an interested person once the will is admitted to probate, because a consequence of the admission of the will to probate is that he or she will not share in the decedent's estate.

Differentiating between emergency ex parte petitions in paragraph (b) of this Rule 23 and those for which notice and hearing are just being waived will facilitate document handling by the court and help expedite processing of emergency documents.