Rule 34 Entry of Judgment, Interlocutory Orders, Appeals

COMMENTARY:

Probate practice has never had decrees, judgments, and other assorted forms of decision that are referred to in the rules of civil procedure. Therefore, it has been unclear when a probate order is final for appeal purposes, other than a formal testacy order, which is specifically appealable. HRS § 560:3-412. The committee recommended a rule that would have conformed to the practice of allowing dispositive orders to be appealed, rather than waiting for the final order settling and closing the estate, in effect, eliminating interlocutory orders. Rule 34 is written to conform probate practice to the policy against piecemeal appeals, see, e.g., Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869 P.2d 1334 (1994), to bring certainty to the timing of when and how an appeal can be taken, and to comply with the provisions of HRS § 641-1.

Original Rule 34 was misread to require all probate orders to be reduced to judgment, even if an immediate appeal was not contemplated. This revised rule clarifies that only certain probate court orders must be reduced to judgment and are thereafter immediately appealable when an appeal is allowed by statute. Those orders include: (1) formal testacy orders and orders determining that the decedent left no valid will and determining heirs, which are final and subject to immediate appeal under HRS § 560:3-412; (2) orders establishing conservatorships under HRS § 560:5-401; (3) orders establishing protective arrangements under HRS § 560:5-412; and (4) orders allowing a final report of a conservator under HRS § 560:5-420(a). All other orders may be certified for appeal pursuant to either Rule 54(b) or HRS § 641-1(b), depending upon the circumstances, but is not necessary to file a separate judgment if an immediate appeal is not contemplated.