How Discovery Works
Chapter 5 of the Michigan Rules of Court governs the procedures in Michigan probate courts, including the conduct of discovery in probate litigation. MCR 5.001(a) provides that: “Procedure in probate court is governed by the rules applicable to other civil proceedings, except as modified by the rules in this chapter.”
Consistent with that provision, the discovery process in probate proceedings follows the same rules as civil actions under MCR 2.300, except as otherwise provided in a specific court rule or state statute. In that regard, MCR 5.131(B)(3) provides a limitation on discovery in probate litigation: “Discovery in a probate proceeding is limited to matters raised in any petitions or objections pending before the court.”
Information-gathering in discovery occurs through three basic processes: 1) The parties may take depositions of witnesses to obtain sworn testimony involving the facts and circumstances relating to the case. 2) A party may submit written interrogatories (questions) to the opposing party, which may request admission of specific facts. 3) Finally, discovery requests may ask for production of specific documents related to the case. In addition, mandatory initial disclosures may be required in contested probate proceedings under MCR 5.131(B)(2), if certain conditions are met.
Discovery in probate cases involving certain conduct by fiduciaries also may involve a unique device under the statutory provisions of MCL 700.1205. That section provides for court examination of a witness if the circumstances meet the statutory requirements.
Conducting discovery in probate litigation requires knowledge and an understanding of the applicable laws and rules of court, which are complicated. The discovery process is one of the important reasons that initiating a proceeding in probate court requires assistance from an experienced probate litigation attorney.
Challenges of Probate Litigation Discovery
Every probate proceeding is unique, because the facts and circumstances underlying the legal claim are always different. The nature and character of probate litigation often poses legal and factual issues that are difficult to demonstrate through evidence, so discovery plays an extremely important role in establishing a probate court claim.
Probate proceedings, such as those that contest a will or another estate issue, often require using the discovery processes to gather information that isn’t readily available or is difficult to obtain. In addition, some evidence in the case may be protected under attorney-client privilege, if it involves communication between the decedent and their lawyer.
When probate litigation involves claims of undue influence, lack of capacity, or similar issues, obtaining direct evidence of a deceased or incapacitated person’s state of mind is frequently impossible. In that situation, a probate litigation attorney uses discovery to gather information about the circumstances surrounding relevant events. The goal is to compile indirect evidence that establishes a pattern of conduct that created undue influence or demonstrates incapacity.
In many cases, probate litigation requires the attorney for a petitioning party to be creative in using discovery to explore all the circumstances surrounding events that relate to the litigation claim. However, the limitations imposed on discovery by the rules of court do not allow a lawyer to conduct discovery without regard to whether the information sought is actually relevant to the case.
Court rules provide a process for the opposing party to ask the court to address whether a particular discovery request is overly far-reaching or unduly burdensome, in violation of the relevance requirement imposed on probate litigation discovery. As a result, the petitioning party’s attorney must explore all available avenues for evidence, while at the same time avoiding a motion for a protective order from the opposing party.
Role of a Probate Litigation Attorney
The role of a probate litigation attorney goes far beyond knowing how to conduct discovery in accordance with the applicable rules and limitations. Even before a petition is filed and discovery occurs, the lawyer’s responsibility includes determining whether there is a viable legal basis for filing a petition with the probate court. Properly framing a probate court claim is an essential part of the probate litigation process.
During discovery, a lawyer also must be cognizant of the rules of evidence that apply in the case, in addition to the statutes and court rules that relate directly to discovery. The evidence rules govern the introduction of witness testimony and documents in court. Some testimony or evidence obtained in discovery may be disallowed because of those rules. A probate litigation attorney has the responsibility of complying with all the applicable rules relating to collecting and introducing evidence.
Talk With Our BRMM Probate Litigation Lawyers
Our probate litigation lawyers at BRMM have extensive experience and success in all types of proceedings in Michigan probate courts. If you think you may have a probate court case, please call us at (248) 494-4577 to talk with us about your concerns. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan.