Powers of Subpoenas for Testamentary Documents Increased
New Rule 25- 12 of WESA greatly expands the subpoena process in obtaining testamentary documents and grants.
Rule 25-12 (1) allows a person to apply for a subpoena to require a person to deliver to the registry a testamentary document and list of other estate related documents.
The subpoena is a document that can require a person to deliver up a document to the registry, including any one or more of the following:
-An estate grant
-a foreign grant
-an authorization to obtain receiving information
-an authorization to obtain state information
-a testamentary document
The subpoena is filed of the court registry along with the supporting affidavit in form P35.
The court must be initially satisfied that the documents have been requested and have not been produced and are relevant.
The issued subpoena must be personally served and that person may apply to the court to have the document set aside. The court has a broad discretion in this regard and may make any order that it considers will further the object of the new probate rules.
Perhaps recognizing the reluctance on some estate litigants to provide documents or information, Rule 25-12-(5) allows the registrar to certify noncompliance with the subpoena, and
(6) empowers the court to issue an arrest warrant on proof of service of the subpoena, proof the documents are required, and production of the noncompliant certification.
Rule 25-12 is as Follows:
RULE 25-12—SUBPOENA FOR TESTAMENTARY DOCUMENT OR GRANT
How to obtain a subpoena for testamentary document or grant
(1) A person may apply for a subpoena to be issued to require a person to deliver to the registry
one or more of a testamentary document, an authorization to obtain estate information, an authorization
to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or
notarial copy of such a document.
(2) An application may be brought under subrule (I) by filing
(a) a requisition for subpoena in Form P35 that provides for the applicant an address for service that is an accessible address that complies with Rule 4-1(1), and
(b) an affidavit in support of the request.
Subpoena may be issued
(3) On being satisfied that
(a) the document in relation to which the subpoena is sought is required for the purpose of any application or other matter under this Part, and
(b) the person to whom the subpoena is addressed failed to comply with a request of the applicant to provide the document to the applicant,
the registrar may issue the subpoena, in Form P37, sought by the application.
Service of subpoena
(4) A subpoena issued under this rule must be personally served and, if an affidavit is filed for the
purpose of proving the service, the affidavit must state when, where, how and by whom service was
Certification of non-compliance
(5) The registrar may endorse a copy of the requisition for subpoena in Form P35 with a notation
that the person to whom the subpoena was directed has not, within a specified period done either of the
(a) delivered to the registry the document referred to in the subpoena;
(b) provided to the registrar an affidavit indicating that the document referred to in the subpoena is not in the person’s possession or control and setting out what knowledge the person has respecting that document.
Failure of subpoenaed person to file document
(6) On receipt of
(a) proof that a subpoena was served on a person (the “served person”),
(b) proof that the delivery of the documents required by the subpoena is required for the purpose of any application or other matter under this Part, and
(c) a copy of the requisition for subpoena in Form P35 that has been endorsed by the registrar in accordance with subrule (5),which the court, by its warrant in Form P36 directed to a peace officer, may cause the served person to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order the served person to pay the costs arising from his or her failure to file the document.
Release of apprehended person
(7) The court may, by release order in Form 117, order the release of a person apprehended under
subrule (6) on receiving an undertaking in Form 116 from that person.
Order setting aside subpoena
(8) A person who has been served with a subpoena under this rule may apply to the court for an
order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would
work a hardship on the person, and the court may make any order it considers will further the object of
these Supreme Court Civil Rules.