Print Version
Previous PageFile uploaded: 11/2/2020

Rule 6-506. Procedure for contested matters filed in the probatecourt.

 

Intent:

To establish procedures for contested matters filed in the probatecourt.

 

Applicability:

This rule applies to matters filed under Title 75, Utah UniformProbate Code when an objection is made orally or in writing upon the record (a?probate dispute?).

 

Statement of the Rule:

(1)  General Provisions. When there is aprobate dispute:

(1)(A)     Rule 4-510.05 of the Utah Codeof Judicial Administration and Rule 101 of the Utah Rulesof Court-Annexed Alternative Dispute Resolution apply.

(1)(B)     Upon the filing of anobjection with the court in accordance with Rule 26.4(c)(2) of the Utah Rulesof Civil Procedure, all probate disputes will be automatically referred by thecourt to the Alternative Dispute Resolution (ADR) Program under Rule 4-510.05 of the Utah Codeof Judicial Administration, unless the court waives mediation. 

(1)(C)     After an objection has beenfiled, and unless the court has waived mediation, the court may schedule thematter for a pre-mediation conference for purposes of the following:

(1)(C)(i)     determiningwhether there is good cause for the matter to not be referred to mediation;

(1)(C)(ii)  ? ensuring that a guardianship respondent has been providedcounsel or that the process provided in Utah Code section 75-5-303 has beenfollowed;

(1)(C)(iii)   determiningall interested persons who should receive notice of mediation;

(1)(C)(iv)   determiningwhether any interested person should be excused from mediation;

(1)(C)(v)    selectingthe mediator or determining the process and time frame for selecting themediator, as provided in Code of Judicial Administration Rule 4-510.05;

(1)(C)(vi)   determiningthe issues for mediation;

(1)(C)(vii)  setting deadlines;

(1)(C)(viii) modifying initialdisclosures if necessary and addressing discovery;

(1)(C)(ix)   determininghow mediation costs will be paid; and

(1)(C)(x)    entering amediation order.

(1)(D)     The court will sendnotification of the pre-mediation conference to petitioner, respondent, and allinterested persons identified in the petition at the hearing and any objectionas of the date of the notification. The notification will include a statementthat

(1)(D)(i)     the interested persons havea right to be present and participate in the mediation, the interested personshave a right to consult with or be represented by their own counsel, and theinterests of the interested persons cannot be negotiated unless the interestedpersons specifically waive that right in writing; and

(1)(D)(ii)    unless excusedby the court, an interested person who fails to participate after receivingnotification of the mediation may be deemed to have waived their right toobject to the resolution of the issues being mediated.

(2)  Procedure

(2)(A)     Objections. Aparty who files a timely objection pursuant to Rule of Civil Procedure 26.4 isrequired to participate in the court-ordered mediation unless the court uponmotion excuses the party?s participation.

(2)(B)     Involvement of InterestedPersons.

(2)(B)(i)     Any notice required underthis rule must be served in accordance with Rule 5 of the Utah Rulesof Civil Procedure.

(2)(B)(ii)    Once mediation is scheduled, thepetitioner must serve notice of the following to all interested persons:

(2)(B)(ii)(a)      the time, date, and location of the scheduled mediation;

(2)(B)(ii)(b)      the issues to be mediated as provided in the pre-mediationscheduling conference order;

(2)(B)(ii)(c)      a statement thatthe interested persons have a right to be present and participate in themediation, that the interested persons have a right to consult with or be representedby their own counsel, and that the interests of the interested persons cannotbe negotiated unless the interested persons specifically waive that right inwriting; and

(2)(B)(ii)(d)      a statement that,unless excused by the court, an interested person who fails to participateafter being served notice of the mediation may be deemed to have waived theirright to object to the resolution of the issues being mediated.

(2)(B)(iii)    Additional issues may be resolved atmediation as agreed upon by the mediating parties and the mediator.

(2)(B)(iv)   Once themediation has taken place, the petitioner must notify all interested persons inwriting of the mediation?s outcome, including any proposed settlement ofadditional issues.

(2)(B)(iv)(a)     Anexcused person has the right to object to the settlement of any additionalissue under (2)(B)(iii) within 7 days of receivingwritten notice of the settlement.

(2)(B)(iv)(b)     Anyobjection to the settlement of additional issues must be reduced to a writing,set forth the grounds for the objection and any supporting authority, and befiled with the court and mailed to the parties named in the petition and anyinterested persons as provided in Utah Code ? 75-1-201(24).

(2)(B)(iv)(c)     Uponthe filing of an objection to the settlement of additional issues, the casewill proceed pursuant to paragraphs (2)(C) through(2)(I).

(2)(C)  Deadline for mediation completion.

(2)(C)(i)     Mediation must be completedwithin 60 days from the date of referral.

(2)(C)(ii)    If the parties agree to adifferent date, the parties must file notice of the new date with the court.

(2)(D)  Mediation Fees.

(2)(D)(i)     If the estate or trust hasliquid assets, and the personal representative, trustee, guardian, orconservator, as applicable, is a mediating party, the estate or trust must paythe mediator?s fees.

(2)(D)(ii)    Otherwise, the disputing partieswill share the cost of the mediation but may later request reimbursement fromthe estate or trust if the estate or trust has liquid assets.

(2)(D)(iii)   A party may petition the court for awaiver of all or part of the mediation fees if the party cannot afford mediatorfees or for other good cause.

(2)(D)(iv)   If the courtgrants a waiver of mediation fees, the party must contact the ADR Director whowill appoint a pro bono mediator.

(2)(E)    Initial disclosures. Within14 days after a written objection has been filed, the parties must comply withthe initial disclosure requirements of Rule 26.4 of the Rules of CivilProcedure.

(2)(F)    Discovery once a probate disputearises. Except as provided in Rule 26.4 of the Rules of CivilProcedure or as otherwise ordered by the court, once a probate dispute arises,discovery will proceed pursuant to the Rules of Civil Procedure, including theother provisions of Rule 26.

(2)(G)    Completion of mediation. Uponcompletion of mediation, the parties will notify the Court of the mediation?sresolution pursuant to Rule 101 of the Utah Rulesof Court-Annexed Alternative Dispute Resolution.

(2)(H)    Written settlement agreement. Ifmediation results in a written settlement agreement, upon a motion from anyparty, the court may enter orders consistent with its terms. The filing of an objectionunder paragraph (2)(B)(iv)(a) does not preclude thecourt from entering orders consistent with the resolved issues. 

(2)(I)      Remainingissues. If issues remain to be resolved after the conclusion ofmediation, the parties must request a pretrial conference with the assignedjudge to establish the deadlines for any supplemental initial disclosures, factdiscovery, expert disclosures, expert discovery, and readiness for trial.

 

Effective November 1, 2020.