MEDIATION RULES

The Probate Court may direct parties to participate in mediation pursuant to the Mediation Rules for Probate, Trust, Conservatorship, and Guardianship (Mediation Rules), attached to these rules as Exhibit A and effective October 1, 1996, and as subsequently amended. (Added August 23, 1996, effective October 1, 1996; further amended April 28, 2006, effective July 1, 2006.) II. PLEADINGS AND PETITIONS Rule 3. PLEADINGS ALLOWED; FORM OF PLEADINGS. (a) Form . There shall be a petition and a response or objection. For purposes of these rules, an application in an informal proceeding is a petition, unless the context of the rule indicates otherwise. Persons may file a joinder, response, or objection to a petition or to a master’s, guardian ad litem’s, or Kokua Kanawai’s report. Persons may file a memorandum in support of their pleadings. Every petition, except one entitled to be heard ex parte, shall be accompanied by an order setting date, time, and place of hearing, which shall include a statement notifying interested persons of the 30-day limit for responding to the petition as provided by Rule 10(c). No other pleading shall be allowed, provided that if a contested matter is referred to the regular civil calendar pursuant to Rule 20, then the Hawaiʻi Rules of Civil Procedure shall apply with respect to the referred petition. 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) Filings in Response to Petition or Master’s, Guardian ad Litem’s, or Kokua Kanawai’s Report. Opposition to any or all of the relief prayed for in a petition or to a master’s, guardian ad litem’s, or Kokua Kanawai’s report shall be in the form of a written objection. Opposition to an application in an informal proceeding shall also be made by filing a petition for formal proceedings. Interested persons may also file a written response to a petition or to a master’s, guardian ad litem’s, or Kokua Kanawai’s report if they do not necessarily object to a petition or to a master’s, guardian ad litem’s, or Kokua Kanawai’s report but desire to state on the record their position, or if they desire to raise additional issues that are related to the petition or to the master’s, guardian ad litem’s, or Kokua Kanawai’s report. 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) Content of Petitions. A petition shall contain (1) a reference to the specific statute or rule, if any are applicable, under which the petition is brought, (2) a concise and plain statement of the facts giving rise to the need for the relief prayed for, (3) all specific facts, allegations, and representations, if any, required by any statute under which the petition is brought, and (4) a prayer for the findings, relief, or order sought. Prayers in the alternative or of several different types may be presented. Petitions shall be construed liberally, and may be deemed amended to conform to the evidence presented. 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) Documents Sealed Upon Filing. The following documents shall be sealed upon filing: (1) birth certificate; (2) marriage certificate; (3) death certificate; (4) tax return; (5) Kokua Kanawai's report; (6) court ordered professional evaluation; and (7) responses and objections to a Kokua Kanawai's report or professional evaluation. The foregoing documents shall remain sealed unless otherwise ordered by the court, or as provided in HRS §560:5-307 and -407. 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) Required Notice; Effect of Failure to Respond. An interested person who opposes a petition or a master’s, guardian ad litem’s, or Kokua Kanawai’s report or intends to support a response or objection shall file the response or objection with the court and serve it on all counsel or parties who have made an appearance in the proceeding. Failure to respond within the time required under Rule 10(c) may be cause for determining that a party waives objection to the petition. 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) Amendment and Supplementation of Pleadings. A party may amend or supplement a pleading to reflect a change in facts after the time of filing of the original pleading, additional relevant facts or law not stated in the prior pleading, or to reflect the facts as established on the record. Any amendment or supplement relates back to the date of the original pleading. All amendments and supplements shall comply with the filing requirements of Rule 10(c). 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). (Amended November 12, 1997, effective December 15, 1997; further amended May 17, 2004, effective July 1, 2004; further amended April 28, 2006, effective July 1, 2006.) Rule 4. FORMAT OF DOCUMENTS. (a) Compliance with Rules of the Circuit Courts. The form of pleadings, affidavits, and memoranda, and method of filing, shall comply with Rules 2 and 3 of the Rules of the Circuit Courts of the State of Hawai‘i. Petitions, and initial responses or objections, together with any memoranda in support, shall not exceed 20 pages in length exclusive of affidavits, exhibits and attachments. Any further response, together with any memorandum in support, shall not exceed 10 pages in length exclusive of affidavits, exhibits and attachments. Upon the filing of an ex parte petition, and for good cause shown, the court may grant permission to exceed page limits. All attached exhibits shall have appropriately labeled tabs. Petitions, responses, or objections, including any supporting memoranda, exceeding 15 pages shall have a table of contents and a table of authorities. COMMENTARY: The Rules of the Circuit Courts of the State of Hawaiʻi technically apply to probate proceedings at this time, but those rules are primarily focused on the conduct of litigation, and so should be made inapplicable. Rule 2 of the Rules of the Circuit Courts of the State of Hawaiʻi, having to do with the mechanics of filing documents, and Rule 3 of the Rules of the Circuit Courts of the State of Hawaiʻi, having to do with the actual format of pleadings, are incorporated by reference to achieve consistency in the filing of documents received by the court, and to eliminate the need for documents receiving clerks to check more than one set of rules for filing requirements. In addition, the page limits of pleadings set forth under Rule 7.1 of the Rules of the Circuit Courts of the State of Hawaiʻi are adopted, with the language modified in order to be consistent with the forms of the Probate Court pleadings. (b) Stapling and Punching of Conventionally Filed Documents. All original documents prepared for conventional filing shall be perforated at the top with a standard two-hole punch. Documents of 10 pages or less shall be secured by a single staple in the upper left corner of the document. Documents of more than 10 pages shall not be stapled, but shall be fastened with paper fasteners through the two-hole punch perforations. COMMENTARY: This Rule is of minimal burden to the attorneys, but makes document handling less burdensome on the court staff. (c) Size of Paper, Folding Oversized Documents to Fit. All documents presented to the court for conventional filing shall not exceed 8 and 1/2 inches by 11 inches in size. Any exhibits, documents, or wills that exceed those measurements shall be folded in such a way that come within these restrictions, and any photocopies of any such documents shall likewise be folded or reproduced on letter-size paper in such a manner that the entire contents of the original document are visible and legible on the copy. COMMENTARY: This complies with current court policy, but expands the reference to copies to allow documents to be reduced through a photocopying process to fit on a letter-sized paper, so long as the copy is complete and legible. (d) Notation of Hearing Time. Every pleading filed for which a hearing date has been previously assigned shall include under the case number on the first page of the pleading a notation of the date, time, and anticipated presiding judge for the hearing. COMMENTARY: This Rule will assist the court in processing documents, particularly when courtesy copies have been delivered to the judge's chambers. (Amended September 26, 2019, effective October 28, 2019; further amended February 27, 2023, effective July 1, 2023. ) Rule 5. SIGNING OF DOCUMENTS. (a) Verification of Documents. All petitions and applications (other than those signed by a party's attorney) shall include a statement at the end and before the signature of the person presenting the document to the effect that the person understands that the document is deemed to include an oath, affirmation, or statement to the effect that (1) its representations are true as far as the person executing or filing it knows or is informed, (2) it is not being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and (3) penalties for perjury may follow deliberate falsification. Such a statement shall be accepted in lieu of an affidavit as to the facts stated in the document. If a submittal is not signed or is signed with the intent to defeat the purpose of this rule, it may be stricken as sham and false and the proceeding may proceed as though the submittal had not been served. For willful violation of this rule, a party may be subjected to an appropriate sanction. The signature of an applicant in informal proceedings shall be notarized. If a document requires consideration of facts not appearing of record or verified as provided above (which may include a document signed by the party’s attorney), it shall be supported by affidavit, signed by the person having knowledge of the facts and competent to testify. In lieu of an affidavit, an unsworn declaration may be made by a person, in writing, subscribed as true under penalty of law, and dated, in substantially the following form: I, (name of person), do declare under penalty of law that the foregoing is true and correct. Dated:_________________________ _______________________ (Signature) COMMENTARY: This rule requires verification of documents in both informal and formal proceedings. However, applicants in informal proceedings to probate a will, determine intestacy, or appoint a personal representative must also have their signatures notarized. Because the Registrar processes a large number of informal applications filed by pro se applicants, it is important to provide an easy mechanism for the Registrar to determine that the applicant is who he or she claims to be. A notarized signature gives the Registrar this proof without adding any significant cost to the probate process. An application for informal probate or appointment must be signed by the applicant, not by and through counsel. (b) Signing by Attorneys. Except as required by statute or by rule, any petition, application, response, objection, memorandum or other substantive document of a party represented by an attorney (including documents signed by an attorney) shall be signed by the attorney of record in the attorney's individual name. The signature of an attorney constitutes a certificate by the attorney that the attorney has read the submittal; that to the best of the attorney's knowledge, information, and belief, there is good ground to support it; and that it is not being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a submittal is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the proceeding may proceed as though the submittal had not been served. For willful violation of this rule, an attorney may be subjected to an appropriate sanction. Similar action may be taken if scandalous or indecent matter is inserted. The attorney's name shall be typed or legibly printed directly below the attorney's signature. COMMENTARY: This clarifies the role of the attorney in the preparation and presentation of documents. An attorney, by signing any petition, application, response, objection, memorandum or other substantive document, and filing it with the court, is certifying that the attorney understands and has complied with this Rule 5. Therefore, if any attorney signs any substantive document as counsel for a party, a separate Rule 5(b) certification is not required. (Amended November 12, 1997, effective December 15, 1997; further amended February 5, 2013, effective July 1, 2013; further amended July 13, 2016, effective January 1, 2017.) Rule 6. STIPULATIONS. (a) Presentation. Unless made in open court, all stipulations shall be in writing, signed by the parties or their attorneys, clearly identify all parties not participating in the stipulation, and be filed with the court. (b) Format for Court Approval. An order based upon a stipulation shall be sufficient if the words "Approved and so ordered" are endorsed at the end of the stipulation and signed by the judge. COMMENTARY: This rule would conform probate court stipulations to common practice. The statement as to parties affected and not affected by the stipulation will speed up the processing of stipulations, as the court staff will not have to confirm that all parties have signed the stipulation. The attorneys do not have to sign the stipulation, but may do so in lieu of the signature of the attorney's client. A stipulation is not necessarily signed or approved by the judge, but Rule 6(b) provides guidance as the proper format to use for court approval. III. NOTICE; TIME Rule 7. METHODS OF SERVING NOTICE. Except as otherwise specifically provided by these rules, statutes, or court order, personal service of notice may be made by means of hand delivery or first-class mailing to the person at the person's last known address, by mailing or delivering a copy of any document to an attorney who makes an appearance for a person in the proceeding, by service of process and summons, by publication, or by any other method reasonably calculated to give notice to interested persons. Service of notice on a guardian ad litem shall be deemed to be equivalent to service on the persons represented by the guardian ad litem. COMMENTARY: HRS § 560:1-401 identifies various methods of serving notice. HRS § 560:5-309(b) requires notice in a conservatorship to be "served personally" on the respondent. Service of notice by a sheriff or other official is not necessary if a more informal process can achieve the same result. The rule also clarifies that service of notice on a guardian ad litem is sufficient to cover notice on the individuals represented by that guardian ad litem, and that additional notice to the individuals is unnecessary. (Commentary amended April 28, 2006, effective July 1, 2006.) Rule 8. PROOF OF SERVICE. A party required to prove service shall file (a) a written acknowledgment of service by the party or attorney served, or (b) an affidavit by the person making the service, together with original signed return receipts, or (c) a certificate of service by the attorney, or (d) any other proof satisfactory to the court, unless otherwise provided by law or by these rules. The filing of a postal return receipt, receipt for notice, waiver of notice, or joinder, signed by the addressee or the parent of a minor addressee, is prima facie proof of service on the person who signed such document. A party who is prejudiced by failure to receive due notice or to be served, or who is prejudiced by reason that service was made by mail or publication, may petition the court for appropriate relief. COMMENTARY: The statutes are silent as to the proper method of making proof of service. This rule allows receipts to be filed, an affidavit of service to be filed, or any other method to be used that establishes on the record that notice was given. A proof of service under Rule 8(b) relying on postal return receipts must attach the return receipts. A document properly addressed and mailed is presumed to be received in the ordinary course of mail. (Commentary amended June 15, 2010, effective July 1, 2010.) Rule 9. PUBLICATION OF NOTICE. (a) Permissible Publications. Whenever publication of notice is required, it shall be made in a newspaper of general circulation within the judicial circuit or district where the proceeding is being brought. COMMENTARY: There have been and continues to be abuses in publication of notice. A clear statement of the permissible publications would eliminate possible constitutional challenges and uncertainty. The committee decided against endorsing any specific newspapers because of concern that they may not have sufficient circulation to be considered of general circulation in the judicial circuit. Publication in the Honolulu Star-Advertiser would be presumed to provide adequate notice in all judicial circuits of this state. Use of any other publication shall provide adequate notice only if approved in advance by the court in the order for notice. (Commentary amended February 5, 2013, effective July 1, 2013.) (b) Proof of Publication. Whenever the publication in a newspaper of any summons, process, notice, or order is required, evidence of such publication shall be given by the affidavit of the editor, publisher, manager, foreman, clerk, or printer of such newspaper, to which affidavit is attached a copy of such summons, process, notice or order, and which affidavit also specifies the dates and times when and the newspaper in which the publication was made. The party required to prove service shall file or be responsible for the filing of the affidavit with the clerk before the time fixed for hearing. COMMENTARY: This formalizes the current practice. (c) Content and Brevity of Notice. A person who prepares a notice to be published shall include in the notice the title of the case, case number, court involved, a brief description of the matter to be heard, the date, time, and location of the hearing, and the name, address, and telephone number of either the party or the party's attorney. Any additional information shall be restricted to that required by statute or rule or essential to provide notice of the reason for the publication. COMMENTARY: This rule is intended to keep costs of administration down by providing guidelines for the content of published notice. Only the essential information necessary to provide adequate notice is to be included in the publication; law firm names, attorney license numbers, names of multiple attorneys, fax numbers, and the like should be eliminated. Capitalized words should be avoided, as they take up more space and result in higher publication costs. Phrases such as "the Honorable John Doe, Judge of the above entitled court" and "on Monday the 12th day of October, 1992" should be dropped in favor of "Judge John Doe" and "Oct. 12, 1992." The idea is to give the public sufficient information to know what is happening, when, and where, and who to contact for additional information. The general guideline is to keep it simple. Use of smaller fonts in the published notice might help to cut costs.