By: Ann Hetherwick Cahill of Burns & Levinson LLP and Darian M. Butcher of Day Pitney LLP, Co-Chairs of the BBA Trusts & Estates Probate Litigation Committee
The Supreme Judicial Court and the Probate and Family Court each issued new Standing Orders that went into effect May 4, which supersede the prior Standing Orders. It is important to read both new Standing Orders together: the SJC Standing Order is available here and the Probate and Family Court Standing Order is available here.
Pursuant to the SJC Standing Order, until at least June 1, the courthouses will remain closed to the general public, except to address emergency matters that cannot be resolved through remote methods, such as telephone, video conference, e-mail, and comparable means. The Probate and Family Court Standing Order enumerates 10 categories of emergency matters, which include, among other things, petitions and motions concerning medical treatments, petitions for appointment of a temporary guardian or conservator, and petitions and motions for appointment of special personal representatives.
Regarding non-emergency matters, the SJC Standing Order directs the Trial Court departments to identify the categories of non-emergency matters that each will attempt to address virtually. In its Standing Order, the Probate and Family Court has identified a goal of hearing as many case types and events as possible. Accordingly, beginning on May 11, 2020, the Probate and Family Court will attempt to hear virtually all case types and events, except for trials and evidentiary hearings, where it is practicable to do so. Determinations concerning the volume of cases to be heard and the case types will be made by the Register and First Justice and will differ across divisions of the Probate and Family Court.
The Standing Orders also affect deadlines in the Probate and Family Court that fall between March 16 and June 1 in the following ways:
1. Most Deadlines are Tolled until a Date after June 1: The deadline extensions of Paragraph 12 of the SJC Order control with the exception of five enumerated types of deadlines listed below. Thus, in most instances, Paragraph 12 of the SJC Standing Order extends all deadlines (based on “statutes, court rules, standing orders, tracking orders, or guidelines”) that expire between March 16 and June 1.
The new deadline is calculated by determining the number of days remaining after March 16 until the original deadline, and add that number of days after June 1. For example, if the original deadline was March 20, then 4 days remained as of March 16, so the new deadline would be June 5 (June 1 plus 4 days).
The new deadline calculations also apply to deadlines that would have originated during the pandemic. For example, if you served discovery while working from home during this pandemic, Paragraph 12 of the SJC Order directs that your new deadline only begins to run as of June 1.
2. The Five Exceptions – These Deadlines Are Not Tolled: Under Paragraph H of the Probate and Family Court Standing Order, the above tolling does not apply to the following five types of deadlines:
i. Findings required by G. L. c. 208, § 1A;
ii. Objection period in G. L. c. 208, § 21, so that judgments absolute may enter in divorce cases;
iii. Time period to file an answer or any other responsive pleading to a contempt summons;
iv. Time period to file an appearance or affidavit of objections pursuant to G. L. c. 190B, § 1-401; and
v. Time period to request a motion for a new trial or to amend findings and/or judgments in Rule 59.
Thus, for cases involving these five types of deadlines with expiration dates falling between March 16 and June 1, the deadlines are not extended. This is a trap for the unwary as failure to take heed of these exceptions could result in a defendant being defaulted if they failed to file an answer or responsive pleading to a contempt summons, or a respondent could lose the opportunity to appear and file an affidavit of objections.
The new Standing Orders also address the operations of the Clerks’, Registers’, and Recorder’s Offices, all of which continue to conduct court business for emergency matters and non-emergency matters as designated by their respective court department. Specifically, the Probate and Family Courts are accepting new matters for filing by mail, e-mail, or e-filing were available, unless filings in emergency matters cannot be accomplished electronically.
For other details about trials and extensions of Probate and Family Court orders, including for treatment plans and temporary orders of appointment in guardianship and conservatorship cases, please review the SJC Standing Order (here) and the Probate and Family Court Standing Order (here).