Rule 3 Pleadings Allowed; Form of Pleadings

(a) COMMENTARY:

A pleading is a statement by a party to a proceeding or a court-appointed official which sets forth or responds to allegations, claims, denials or defenses, and may be supplemented or supported by affidavit or memorandum. To simplify probate court proceedings, to distinguish them from civil actions, and to address the confusion that currently exists with respect to the proper form of pleadings in trust and other proceedings, all requests for court relief or action shall be initiated by a petition. Motions as a form would be prohibited, except where a contested matter has been assigned to the regular civil calendar pursuant to Rule 20, during which assignment the Hawaiʻi Rules of Civil Procedure would apply. The committee considered combining the concepts of an "objection" and a "response," but felt that an objection is clearly and unequivocally in opposition to a pleading, while a response may not necessarily oppose all relief requested in a petition, and could raise additional issues related to the petition. A response could be a pleading referring to the initial petition, or could be in reference to an objection or another party's response or a master’s, guardian ad litem’s, or Kokua Kanawai’s report. A response should state in its title clearly to what other pleading it is responding. This rule does not abolish other types of procedural documents, such as joinders, receipts, waivers, and the like, which do not contain substantive statements of position.

Orders setting time and place of hearing must contain a sentence notifying interested parties that they have 30 days to file a response or objection to the petition.

(b) COMMENTARY:

In informal proceedings, a person who objects to an application must file a formal petition for determination of intestacy or probate of a will in order to have the objection heard by the court. Such a petition can be filed either before or after the letters are issued (where, for example, no advance notice is given). While HRS § 560:3-302(b) allows the registrar to issue letters if more than 14 days have elapsed since service of the application, it may be difficult for an objecting party to file a formal petition within that time frame. This rule, therefore, allows the party to file a written objection with the court to at least put the registrar on notice of such objection, but a formal petition must also be filed in order for the court to consider the issue.

(c) COMMENTARY:

This rule outlines what must be contained in a petition, including specific statutory citations. Petitioners should give sufficient facts in the petition to clearly support the relief requested, including all specific information required by any applicable statute. Given the equitable nature of the proceeding, alternative and multiple prayers may be made, and the petition may be deemed amended to reflect the evidence presented to the court. This rule is in keeping with the informal nature of the proceedings and the desire to dispose of matters quickly without delay caused by failure to follow technical rules of pleading.

(d) COMMENTARY:

This rule is intended to protect the respondent's privacy and to minimize the risk of identity theft. Because of the sensitive information included in birth, death, and marriage certificates, and in tax returns, those documents must be sealed upon filing. The Kokua Kanawai report and any evaluations by court-ordered professionals are required to be sealed upon

filing pursuant to Haw. Rev. Stat. § 560:5-306 and 5-406(f). Because the reports are sealed, responses and objections that refer to them are also sealed.

(e) COMMENTARY:

This rule clearly establishes that an interested person cannot sit on his or her rights; all interested persons must let their positions be known, or they will be deemed to have waived any objections to the granting of the petition. The last sentence of the rule uses the term “may” because there may be circumstances in which an interested person does not receive notice of the petition within a sufficient time to respond, and such persons should be allowed to come in after the hearing and show why they should be heard.

(f) COMMENTARY:

Generally in probate, amended pleadings to reflect newly-discovered facts, changes in circumstance, or changes in position are allowed. This rule continues

that practice, as long as the new pleading is filed within the time constraints of Rule 10(c).