Peter L. Klenk, Esq., J.D. LL.M. Tax
When clients retain my firm for a Will Challenge or other matter before the Pennsylvania Orphans’ Court they are often unfamiliar with the process of how information and evidence is gathered from interested parties and potential witnesses. This process, which falls under the broad category of “Discovery”, is well mapped out in the Trial or Civil Division of the local Courts of Common Pleas where other types of legal issues are sorted out, such as personal injury cases, land disputes and contract disputes. But when challenging a Will the case is heard in a special court, the Orphans’ Court, and in the Orphans’ Court there is an additional set of rules which must be followed; The Pennsylvania State Orphans’ Court Rules.
Our attorneys regularly appear before the Orphans’ Courts of many counties in Pennsylvania. The Orphans’ Courts have their own set of court rules, different from those of the other courts in Pennsylvania and experience has taught us that even though the Pennsylvania Supreme Court has promulgated these separate, uniform rules, one must also be familiar with the local rules of each individual Orphans’ Court. An attorney who may litigate often in another court, but does not regularly practice in the Orphans’ Court, need carefully review these unfamiliar Orphans’ Court Rules before rushing with a Will Challenge or a Petition to Account, or the lawyer risks endangering his clients’ case.
The Pennsylvania Supreme Court has promulgated the “Orphans’ Court Rules of the Supreme Court of Pennsylvania.” Each County has an Orphans’ Court and at least one Orphans’ Court judge with jurisdiction to hear disputes regarding estates, such as Will Challenges and Executor and Administrator’s Accountings. Rule 1.2 states that The Orphans’ Courts of the several judicial districts may adopt local rules regulating practice and procedure, but such rules shall not be inconsistent with any rule adopted by the Supreme Court. In other words, the various Orphans’ Courts may add to the Supreme Court’s Orphans’ Courts Rules, but cannot subtract or contradict the basic outline created in the Orphans’ Court Rules of the Supreme Court.
When a dispute moves into the Orphans’ Court, such as when a Will is challenged on the basis of forgery, undue influence or the competency of the testator or testatrix, both sides of the dispute need to gather evidence and interview witnesses. Pennsylvania State Orphans’ Court Rule 3.6, Depositions, Discovery, Production of Documents and Perpetuation of Testimony, states that the local Orphans’ court, by general rule or special order, may prescribe the practice relating to depositions, discovery, production of documents and perpetuation of testimony. To the extent not provided for by such general rule or special order, the practice relating to such matters shall conform to the practice in the Trial or Civil Division of the local Court of Common Pleas. This means that prior to launching a Will Challenge or prior to defending a Will from challenge, the attorney involved must be familiar not only with the state wide rules that govern the Courts of Common Pleas, but also must be familiar with the local rules promulgated by the local Orphans’ Court.
The Philadelphia Orphans’ Court has promulgated such local rules on Discovery. Philadelphia Rule 3.6.A states that obtaining discovery or the production of documents is voluntary unless there is an agreement of counsel or a petition to the court upon cause shown. If such a petition is filed and the court grants leave for discovery, the procedure relating to depositions, discovery and the production of documents shall be governed by the Order of the Court…not by the general rules of the Courts of Common Pleas. The Bucks County, Delaware County and Montgomery County Orphans’ Court Rule 3.6A emphasizes this point even more by stating “The procedure relating to depositions, discovery, the production of documents and perpetuation of testimony shall be governed by special order of the Court in every case.”
In some counties, such as in the Lehigh County Orphans’ Court Rule 3.6-2, Petition to Take Depositions, to Obtain Discovery or to Require the Productions of Documents, the local Orphans’ Court has outlined in great detail what must petitioners must include in a Petition for Discovery. A Petitioner must follow these rules or risk the Petitions’ rejection.
A good understanding of the local rules might also reveal the local Orphans’ Court philosophy. Philadelphia Orphans’ Court rule 3.6.B, Pre-Trial Conference, states that the Court on motion of any party…or the Court on its own motion…may direct counsel for the parties to appear for a conference to identify the issues in dispute, the necessity or desirability of pleading amendments, the possibility of obtaining admissions of fact and of documents (which then avoid the time and expense of proving the same) and “such other matters as may aid the disposition of the action.” This Rule indicates to an Orphans’ Court lawyer that the judges in the Philadelphia Orphans’ Court like to move cases along and become active in case management, which my years of practice before the Court has confirmed. The language “such other matters as may aid the disposition of the action” would also indicate that the judges in Philadelphia Orphans’ Court like to move cases towards settlement (usually a wise decision for all Parties involved), which my experience also indicates is true.
Being prepared in the Orphans’ Court means not only knowing the rules of other Common Pleas Courts, but also having a good understanding of the Pennsylvania and the local Orphans’ Court Rules.
