Rule 50 Initial Pleadings

(a) COMMENTARY:

This Rule changes the Rules of the Circuit Courts of the State of Hawaiʻi in defining the types of case filings allowed. Case filing designations S.E., W.D., D.N., and the like will be eliminated in favor of using a P. No. for all proceedings relating to a deceased's estate. By assigning a P. No. to a particular deceased upon the filing of an initial pleading with respect to that deceased and then requiring all later filings of any nature relating to that deceased to use the same P. No., the court can be assured of having all pleadings relating to a particular deceased in one file. In addition, assigning a P. No. upon the filing of a Demand for Notice or Will Deposit will lessen the chance that the Demand or Will is missed, because the court staff will not have to cross-index case numbers or check different classes of cases when a probate proceeding is initiated. Finally, using one case number throughout the administration of a deceased's estate will eliminate burdensome procedures and confusion when the proceeding changes form, such as when a small estate is converted into an informal probate, or an informal into a supervised. In the case of a proceeding relating to a testamentary trust, all filings shall use the same P. No. or E. No. used in the proceedings relating to a deceased’s estate. E. No. refers to cases initiated as equity proceedings.

The second part of the rule, requiring a notation of the type of proceeding at the point the document is filed, conforms to civil court practice and assists the court staff and parties to readily identify the status and nature of the estate. The wording of the case caption may also change as the character of the proceeding changes, for example from "In the Disappearance of John Doe, born

January 1, 1920" to "Estate of John Doe, Deceased."

(b) COMMENTARY:

This Rule is intended to clarify the status of beneficiaries and heirs on the face of the petition and to establish why a particular person is not being considered a beneficiary of the estate. Contingent beneficiaries who will not take because the contingency giving rise to their right to take did not occur need not be given notice. (For example, where a will leaves the residuary estate to Joe, but if Joe does not survive the testator, to Bill, and Joe survives the testator, then Bill need not be given notice as his rights never vest. But if the contingency has not been settled at the time of the filing of the petition, then the contingent beneficiary must be given notice.)

The committee considered the rights of beneficiaries named in a prior will but found no statutory or common law right to notice to such possible parties solely to enable them to bring a will contest. Hawaiʻi Revised Statutes, Section 560:3-403(a) specifically limits the class of individuals entitled to notice of the commencement of a probate proceeding. Extending a notice right to persons named in a prior will raises many questions of whether an alleged prior will is the immediately prior will, and all the proof and capacity questions raised with the will presented for probate.

If a vested beneficiary dies prior to the filing of the petition or application, then the estate of the beneficiary shall be named as the beneficiary and given notice. If a probate estate has not been started for the deceased beneficiary, the petitioner is under no obligation to commence probate proceedings on behalf of the deceased beneficiary, but the petitioner should undertake reasonable efforts to notify known relatives of the deceased beneficiary of the vested interest.

The last sentence of the rule requires notice to those persons known to the petitioner or applicant to be alleged illegitimate children of a male deceased, so that those persons will have an early opportunity to take action to prove their relationship. In most cases, the actual determination of paternity will have to be made by the family court, but identifying the potential children should lead to more expedient and final settlement of the estate.

(c) COMMENTARY:

To help the registrar determine whether advance notice will be required in informal applications, an informal probate information sheet that summarizes the nature of the proceeding must be filed.

(d) COMMENTARY:

A reference to the flag sheet requirement of Rule 81 of these Rules is added for clarity.