Probate Litigation Strategies in a COVID-19 World

March 26, 2020

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The Courts have essentially closed, and “non-essential” law firm personnel have been ordered to work from home as much as possible, but that does not mean your probate litigation case must be held in limbo. Here are our Top 5 strategies for remaining proactive in pending and anticipated probate litigation matters.

1. Is your case pending in the Fiduciary Litigation Session, and if not, should it be transferred? Notwithstanding that the Probate and Family Courts, in large part, are postponing all non-emergency matters until May 1 or later, at least one division of the specialized Fiduciary Litigation Session (FLS) remains open for business by telephone. The goal of the FLS is “to provide a specialized forum for the speedy resolution of contested and complex probate litigation cases and to provide individualized and collaborative case management to reduce the costs associated with fiduciary litigation.” In many cases, the FLS has continued to do just that. Rather than issuing blanket continuances, the Court has been handling routine, non-emergency matters as scheduled, with counsel “appearing” via conference call. If your case is pending before the FLS, prepare for business as usual. If your probate litigation matter has not yet been transferred to the FLS, consider whether to make a request for reassignment.
2. Is your case a Guardianship, Conservatorship, or other defined “emergency,” warranting a telephonic or video-conference hearing? Under the Probate and Family Court’s latest COVID-19 Standing Order, there are certain matters that are clearly defined as emergencies warranting prompt hearing while the Courts are otherwise closed, including petitions seeking the appointment of a temporary guardian or conservator. Each division of the Probate and Family Court has issued guidance to the bar as to how such matters may be filed and scheduled, with hearings likely to take place via conference call. Within the realm of probate litigation, in addition to Guardianship and Conservatorship matters, the matters that will presumptively receive emergency hearings include: (a) petitions/motions seeking a Do Not Resuscitate order, authorization for medical treatment, or orders for the administration of antipsychotic medication; (b) petitions for a Protective Services Order; (c) health care proxy actions; (d) petitions/motions for appointment of a Special Personal Representative; and (e) requests for injunctive relief.
3. Does your case require proactive discovery or other preparation? If your probate litigation matter is already pending, we will be using this unprecedented lull in Court activity to carefully and proactively strategize the out-of-Court discovery and investigation that may help bolster your position when the Courts re-open. Requests for Production of Documents, Interrogatories, and Requests for Admissions can certainly be drafted, served, and responded-to while working remotely. There are even options available for scheduling and taking depositions via video conference where appropriate, including if necessary to preserve the testimony of a witness who may be unavailable by the time a case goes to trial. To the extent your case is scheduled for Pre-Trial Conference or other substantive appearance after May 1, we will be using this time get ahead of the game and prepare in advance for that appearance, including drafting appropriate memoranda and brainstorming for oral presentation.
4. Would your case benefit from Alternative Dispute Resolution? Although there is often a strong preference for Mediation, Conciliation, and similar events to occur in person, there are multiple ADR providers who are more than willing to help facilitate resolution of probate litigation and other matters remotely, including a team of retired Probate and Family Court judges who offer various dispute-resolution services. Whether you are looking to negotiate a case in full, or simply need guidance on a discovery issue or other interim dispute, consider utilizing ADR to keep things moving while access to the Court is limited. To the extent an in-person ADR session is desired, the scheduling and planning for that can start now, so that we are at the top of the list when offices re-open.
5. Do you have as-yet-unfiled claims that warrant consideration and strategic planning? There is no time like the present to consult with counsel about that little (or big) issue that’s been weighing on your mind related to a loved one’s will, trust, assets, etc., and/or a potential dispute with a trustee or other fiduciary. We are here. We are fully operational. We are ready to hear your concerns and develop a strategy for resolution.

Please check in here and to our Probate blog, Beyond the Will, for ongoing updates and guidance, as new Standing Orders and directives from the various Divisions of the Probate and Family Court are issued on a near-daily (sometimes more than once daily) basis. If you have a question about how these Orders impact your particular case, please reach out to one of us for advice.

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About the Authors: Brian D. Bixby and Tiffany Bentley

Brian Bixby is a co-chair of Burns & Levinson’s Private Client group, chair of the Probate Litigation group, and is a member of the Trusts & Estates and Divorce & Family Law groups. He concentrates his practice on all aspects of estate planning, fiduciary administration, probate court litigation, appeals, family law, guardianships and conservatorships, and representation of individuals and fiduciaries. He can be reached at bbixby@burnslev.com or at 617.345.3360.

Tiffany Bentley is a partner in Burns & Levinson private Client Group. Spending her entire legal career at the firm, Tiffany’s practice has been primarily focused on all aspects of Probate and Family Court litigation. From initial consultation, through discovery and settlement negotiations, and all the way to trial where necessary, Tiffany’s clients can rely on her to bring superior knowledge and skill, as well as empathy and kindness, to obtain the best possible outcomes for them and their families. She can be reached at tbentley@burnslev.com or at 617.345.3212.