Civil Discovery Rules Can Be Used in Probate Discovery
While on my first job as a probate paralegal the first thing the law firm manager told me is that the Discovery Act applies to probate discovery.
The Probate Code provides generally that the rules and practice applicable to civil actions, including discovery proceedings . . . , apply to, and constitute the rules of practice in estate administration proceedings; but the Code also states that the general rules of civil discovery practice do not apply to the extent that the Probate Code provides applicable rules. Probate Code §1000.
Thus, except as otherwise provided in the Probate Code itself, the normal rules of discovery for civil actions apply in probate discovery proceedings and, in fact, there is no question but that the discovery procedures found in the California Code of Civil Procedure are available for use in probate discovery proceedings. [Forthmann v. Boyer (2002) 97 CA4th 977, 987, 118 CR2d 715, 722–beneficiaries request to continue hearing on petition for approval of accounting to conduct discovery properly denied where no objection or response to accounting has been made; Mota v. Super.Ct. (Villalobos)(2007) 156 CA4th 351, 355, 67 CR3d 303, 305. (t)hose cases which have held provisions in the Code of Civil Procedure inapplicable in probate proceedings involve provisions of the Code of Civil Procedure which are inconsistent with specific provisions of the Probate Code. California’s generally applicable tax-return privilege protected personal tax returns of decedent’s joint tenant from compelled disclosure in will contest and Probate Code §850 proceeding]
Requesting Mental Examinations in Probate Discovery
Therefore it is conceivable that an opposition to a petition for removal of co-trustee could request a mental and physical examination of the petitioner. The grounds for using CCP 2032 of the discovery act must be relevant to the administration of the trust. Therefore you would allege that a normal discovery request for mental and physical examination is necessary to determine if petitioner is capable of administering the trust. To support such motion you would allege that the mental and physical illness of petitioner incapacitates petitioner and renders petitioner unable to properly administer the trust for the benefit of the beneficiaries.
All other forms of civil discovery such as form interrogatories, special interrogatories, requests for admission and requests for production can be used while litigating under the Probate Code. Of course it would then be logical that civil discovery law and motion rules would be used in Probate Code proceedings the same way discovery motions would be used in the Civil Code. Civil litigation paralegals are able to use discovery skills to assist with discovery and investigation of Probate Code proceedings.