Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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New Probate Rule for Discovery

The Colorado Supreme Court recently approved a new probate discovery rule, effective October 10, 2013, which should eliminate the confusion regarding the applicability of the Colorado Rules of Civil Procedure to probate and trust contests.

For years, probate and trust litigators have been frustrated with some courts’ unwillingness to apply the Colorado Rules of Civil Procedure to discovery in will and trust contests. The confusion stems from the fact there is no Probate Rule or Probate Statute governing discovery. To add to the confusion, Probate Rule 1 provides: "to the extent not inconsistent with Colorado Rules of Probate Procedure, the Colorado Rules of Civil Procedure govern the procedure in district courts when sitting in probate." However, Colorado Rules of Civil Procedure 16 and 26 governing discovery expressly state those rules do not apply to probate proceedings unless otherwise ordered by the Court or stipulated by the parties. It was the intent of the Colorado legislature in revising C.R.C.P. 16 and 26 to make those rules generally inapplicable to "expedited proceedings" such as Domestic Relations, Juvenile and Probate proceedings. The ambiguity in the rules resulted in some district court judges allowing discovery and other district court judges disallowing discovery in contested probate and trust cases, resulting in significant delay and expense for the litigants.

Generally C.R.C.P. 16 and C.R.C.P. 26 of the Colorado Rules of Civil Procedure are designed to address the preparation and conduct of civil trials, and include specific rules for discovery and disclosure, case management and trial preparation.

Three years ago the Colorado Bar Association Probate and Trust Section Rules and Forms Subcommittee created another subcommittee to draft a probate rule for discovery. Last week, the Colorado Supreme Court approved the new probate rule, effective October 10, 2013 which specifically provides that certain Rules of Civil Procedure related to discovery apply to probate and trust cases unless the court, in its discretion, states otherwise.

This new rule (set forth below) should help expedite discovery in probate and trust litigation and eliminate delay and expense as well as help foster disclosure of relevant evidence to beneficiaries related to the decedent’s intent.

RULE CHANGE 2013(14)



Rule 37. Discovery

(a) This rule establishes the provisions and structure for discovery in all proceedings seeking relief under Title 15, C.R.S. Nothing in this Rule shall alter the court’s authority and ability to direct proportional limitations on discovery or to impose a case management structure or enter other discovery orders. Upon appropriate Motion or sua sponte, the court may apply the Rules of Civil Procedure in whole or in part, may fashion discovery rules applicable to specific proceedings and may apply different discovery rules to different parts of the proceeding.

(b) Unless otherwise ordered by the court, the parties may engage in the discovery provided by C.R.C.P. 27 through 37. Any discovery conducted in Title 15 proceedings prior to the issuance of a case management or other discovery order shall be subject to C.R.C.P. 26(a)(2)(A); 26(a)(2)(B)(4) and (5); and 26(b) through (g). However, due to the unique, expedited and often exigent circumstances in which probate proceedings take place, C.R.C.P. 16, 16.1, 16.2 and 26(a)(1), do not apply to probate proceedings unless ordered by the court or stipulated to by the parties.

(c) C.R.C.P. 45 and 121, Section 1-12, are applicable to proceedings under Title 15.

(d) Notwithstanding subsections (a) through (c) of this Rule 37, subpoenas and discovery directed to a respondent in proceedings under Part 3 of Article 14 of Title 15, shall not be permitted without leave of court, or until a petition for appointment of a guardian has been granted under Section 15-14-311, C.R.S.

Adopted by the Court, En Banc, October 10, 2013, effective immediately.

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