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he has caused notice of the time and decedent's death and notice of the place of the hearing to be posted at pendency of the probate proceedings. least 20 days in five or more conspicu
(36 FR 7186, Apr. 15, 1971, as amended at 39 ous places in the vicinity of the desig.
FR 31636, Aug. 30, 1974) nated place of hearing, and he may cause postings in such other places 8 4.212 Contents of notice. and reservations as he deems appropriate. A certificate showing the date and
(a) In the notice of hearing, the adplace of posting shall be signed by the
ministrative law judge shall specify person or official who performs the
that at the stated time and place he act.
will take testimony to determine the (b) The administrative law judge
heirs of the deceased person (naming shall serve or cause to be served a copy
him) and, if a will is offered for proof the notice on each party in interest bate, testimony as to the validity of reported to the administrative law
the will describing it by date. The judge and on each attesting witness if notice shall name all known presumpa will is offered:
tive heirs of the decedent, and, if a will (1) By personal service in sufficient is offered for probate, the beneficiatime in advance of the date of the
ries under such will and the attesting hearing to enable the person served to
witnesses to the will. The notice shall attend the hearing; or
cite this subpart as the authority and (2) By mail, addressed to the person
jurisdiction for holding the hearing, at his last known address, in sufficient and shall inform all persons having an time in advance of the date of the interest in the estate of the decedent, hearing to enable the addressee served
including persons having claims or acto attend the hearing. The administra
counts against the estate, to be prestive law judge shall cause a certificate,
ent at the hearing or their rights may as to the date and manner of such be lost by default. mailing, to be made on the record copy (b) The notice shall state further of the notice.
that the hearing may be continued to (c) All parties in interest, known and another time and place. A continuance unknown, including creditors, shall be may be announced either at the origibound by the decision based on such nal hearing by the administrative law hearing if they lived within the vicini- judge or by an appropriate notice ty of any place of posting during the posted at the announced place of hearposting period, whether they had ing on or prior to the announced hearactual notice of the hearing or not. As ing date and hour. to those not within the vicinity of the place of posting, a rebuttable pre
DEPOSITIONS, DISCOVERY, AND sumption of actual notice shall arise
PREHEARING CONFERENCE upon the mailing of such notice at a
8 4.220 Production of documents for inreasonable time prior to the hearing, unless the said notice is returned by
spection and copying. the postal service to the administra. (a) At any stage of the proceeding tive law judge's office unclaimed by prior to the conclusion of the hearing, the addressee.
a party in interest may make a written (d) Tribes to be charged with notice demand, a copy to be filed with the adof death and probate. When a record ministrative law judge, upon any other reveals that a Tribe has a statutory party to the proceeding or upon a cusoption to purchase interests of a dece- todian of records on Indians or their dent, such Tribe shall be notified of trust property, to produce for inspecthe pendency of a proceeding by the tion and copying or photographing, judge having probate jurisdiction in any documents, papers, records, letsuch proceeding, and the judge's cer- ters, photographs, or other tangible tificate of mailing of notice of probate things not privileged, relevant to the hearing or of a final decision in pro- issues which are in the other party's bate to the Tribe at its record address or custodian's possession, custody, or shall be conclusive evidence for all control. Upon failure of prompt compurposes that the Tribe had notice of pliance the administrative law judge
may issue an appropriate order upon a petition filed by the requesting party. At any time prior to closing the record, the administrative law judge upon his own motion, after notice to all parties, may issue an order to any party in interest or custodian of records for the production of material or information not privileged, and relevant to the issues.
(b) Custodians of official records shall furnish and reproduce documents, or permit their reproduction, in accordance with the rules governing the custody and control thereof. 8 4.221 Depositions.
(a) Stipulation. Depositions may be taken upon stipulation of the parties. Failing an agreement therefor, depositions may be ordered under paragraphs (b) and (c) of this section.
(b) Application for taking deposition. When a party in interest files a written application, the administrative law judge may at any time thereafter order the taking of the sworn testimony of any person by deposition upon oral examination for the purpose of discovery or for use as evidence at a hearing. The application shall be in writing and shall set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of that person, qualified under paragraph (d) of this section to take depositions, before whom the proposed examination is to be made;
(3) The proposed time and place of the examination, which shall be at least 20 days after the date of the filing of the application, and
(4) The reasons why such deposition should be taken.
(c) Order for taking deposition. If after examination of the application the administrative law judge determines that the deposition should be taken, he shall order its taking. The order shall be served upon all parties in interest and shall state:
(1) The name of the deponent;
(2) The time and place of the examination which shall not be less than 15 days after the date of the order except as stipulated otherwise; and
(3) The name and address of the officer before whom the examination is
to be made. The officer and the time and place need not be the same as those requested in the application.
(d) Qualifications of officer. The deponent shall appear before the administrative law judge or before an officer authorized to administer oaths by the law of the United States or by the law of the place of the examination.
(e) Procedure on examination. The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. The testimony of the deponent shall be recorded by the officer or someone in his presence. An applicant who requests the taking of a person's deposition shall make his own arrangements for payment of any costs incurred.
(f) Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and shall be read to or by him, unless such examination and reading are waived by the deponent or by all other parties in interest. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. The deposition shall then be signed by the deponent, unless the parties in interest by stipulation waive the signing, or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent, the officer shall sign it and state on the record the fact of the waiver, or of the illness or absence of the deponent or the fact of the refusal to sign together with the reason, if any, given therefor; the deposition may then be used as fully as though signed, unless the administrative law judge holds that the reason given for refusal to sign requires rejection of the deposition in whole or in part.
(g) Certificates by officer. The officer shall certify on the deposition that the deponent was duly sworn by him and that the deposition is a true record of the deponent's testimony. He shall then securely seal the deposition, together with two copies thereof, in an envelope and shall personally deliver or mail the same by certified or
registered mail to the administrative 84.223 Objections to and limitations on law judge.
production of documents, depositions (h) Use of depositions. A deposition and interrogatories. ordered and taken in accord with the
The administrative law judge, upon provisions of this section may be used
motion timely made by any party ir. in a hearing if the administrative law
interest, proper notice, and good cause judge finds that the witness is absent
shown, may direct that proceedings and his presence cannot be readily ob under $$ 4.220, 4.221, and 4.222 shall be tained, that the evidence is otherwise conducted only under, and in accordadmissible, and that circumstances ance with, such limitation as he deems exist that make it desirable in the in necessary and appropriate as to docuterest of fairness to allow the deposi- ments, time, place, and scope. The adtion to be used. If a deposition has ministrative law judge may act on his been taken, and the party in interest own motion only if undue delay, dila. on whose application it was taken re- tory tactics, and unreasonable de fuses to offer the deposition, or any mands are made so as to delay the orpart thereof, in evidence, any other derly progress of the proceeding or party in interest or the administrative cause unacceptable hardship upon a law judge may introduce the deposi- party or witness. tion or any portion thereof on which he wishes to rely.
8 4.224 Failure to comply with orders.
In the event of the failure of a party & 4.222 Written interrogatories; admission
to comply with a request for the proof facts and documents.
duction of a document under $ 4.220: At any time prior to a hearing and in or on the failure of a party to appear sufficient time to permit answers to be
for examination under $ 4.221 or on filed before the hearing, a party in in
the failure of a party to respond to interest may serve upon any other party
terrogatories or requests for admisin interest written interrogatories and
sions under $ 4.222; or on the failure of requests for admission of facts and
a party to comply with an order of the documents by filing such application
administrative law judge issued under
§ 4.223 without, in any of such events, and requests with the administrative
showing an excuse or explanation satlaw judge, who shall thereupon trans
isfactory to the administrative law mit a copy to the party in interest for
judge for such failure, the administra. whom they are intended. Such inter
tive law judge may: rogatories and requests for admissions
(a) Decide the fact or issue relating shall be drawn with the purpose of de
to the material requested to be profining the issues in dispute between
duced, or the subject matter of the the parties and facilitating the presen
probable testimony, in accordance tation of evidence at the hearing. An
with the claims of the other party in swers shall be served upon the admin
interest or in accordance with other istrative law judge within 15 days from
evidence available to the administrathe date of service of such interroga
tive law judge; or tories or within such other period of
(b) Make such other ruling as he detime as may be agreed upon by the
termines just and proper. parties or prescribed by the administrative law judge. A copy of the an- $ 4.225 Prehearing conference. swers shall be transmitted by the ad
The administrative law judge may, ministrative law judge to the party
upon his own motion or upon the repropounding the interrogatories.
quest of any party in interest, call Within 10 days after service of written
upon the parties to appear for a coninterrogatories are made upon him, a
ference to: party in interest so served may serve
(a) Simplify or clarify the issues; cross-interrogatories for answer by the
(b) Obtain stipulations, admissions, witness to be interrogated.
agreements on documents, understandings on matters already of
record, or similar agreements which will avoid unnecessary proof;
(c) Limit the number of expert or other witnesses in avoidance of excessively cumulative evidence;
(d) Effect possible agreement disposing of all or any of the issues in dispute; and
(e) Resolve such other matters as may simplify and shorten the hearing.
(b) The proceedings of hearings shall be recorded verbatim and transcribed and made a part of the record.
(C) The record shall include a showing of the names of all parties in interest and of attorneys who attended such hearing.
HEARINGS § 4.230 Administrative law judge; authori.
ty and duties. The authority of the administrative law judge in all hearings in estate proceedings includes, but is not limited to authority:
(a) To administer oaths and affirmations;
(b) To issue subpoenas under the provisions of 25 U.S.C. 374 (1964) upon his own initiative or within his discretion upon the request of any party in interest, to any person whose testimony he believes to be material to a hearing. Upon the failure or refusal of any person upon whom a subpoena shall have been served to appear at a hearing or to testify, the administrative law judge may file a petition in the appropriate U.S. District Court for the issuance of an order requiring the appearance and testimony of the witness:
(c) To permit any party in interest to cross-examine any witness;
(d) To appoint a guardian ad litem to represent any minor or incompetent party in interest at hearings;
(e) To rule upon offers of proof and receive evidence;
(f) To take and cause depositions to be taken and to determine their scope; and
(g) To otherwise regulate the course of the hearing and the conduct of witnesses, parties in interest, and attorneys at law appearing therein.
84.232 Evidence; form and admissibility.
(a) Parties in interest may offer at a hearing such relevant evidence as they deem appropriate under the generally accepted rules of evidence of the State in which the evidence is taken, subject to the administrative law judge's supervision as to the extent and manner of presentation of such evidence.
(b) The administrative law judge may admit letters or copies thereof, affidavits, or other evidence not ordinarily admissible under the generally accepted rules of evidence, the weight to be attached to evidence presented in any particular form being within the discretion of the administrative law judge, taking into consideration all the circumstances of the particular case.
(c) Stipulations of fact and stipulations of testimony that would be given by witnesses were such witnesses present, agreed upon by the parties in interest, may be used as evidence at the hearing.
(d) The administrative law judge may in any case require evidence in addition to that offered by the parties in interest. [36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971)
8 4.233 Proof of wills, codicils, and revo
cations. (a) Self-proved wills. A will executed as provided in § 4.260 may, at the time of its execution, be made self-proved, and testimony of the witnesses in the probate thereof may be made unnecessary by the affidavits of the testator and attesting witnesses, made before an officer authorized to administer oaths, such affidavits to be attached to such will and to be in form and contents substantially as follows:
§ 4.231 Hearings.
(a) All testimony in Indian probate hearings shall be under oath and shall be taken in public except in those circumstances which in the opinion of the administrative law judge justify all but parties in interest to be excluded from the hearing.
-, being first duly sworn, on oath, depose and say: That I am an -- (enrolled or unenrolled) member of the
------ Tribe of Indians in the State of --- ----; that on the --- day of --- -, 19---, I requested
-- to prepare a will for me; that the attached will was prepared and I requested - --
--- and --- to act as witnesses thereto; that I declared to said witnesses that said instrument was my last will and testament; that I signed said will in the presence of both witnesses and they signed the same as witnesses in my presence and in the presence of each other; that said will was read and explained to me (or read by me), after being prepared and before I signed it and it clearly and accurately expresses my wishes; and that I willingly made and executed said will as my free and voluntary act and deed for the purposes therein expressed.
will may be made self-proved in the same manner as provided in paragraph (a) of this section with respect to a will.
(c) Will contest. If the approval of a will, codicil thereto, or revocation thereof is contested, the attesting witnesses who are in the reasonable vicinity of the place of hearing and who are of sound mind must be produced and examined. If none of the attesting witnesses resides in the reasonable vicinity of the place of hearing at the time appointed for proving the will, the administrative law judge may admit the testimony of other witnesses to prove the testamentary capacity of the testator and the execution of the will and, as evidence of the execution, the administrative law judge may admit proof of the handwriting of the testator and of the attesting witnesses, or of any of them. The provisions of $ 4.232 are applicable with respect to remaining issues.
Testator/Testatrix We, --
--, each being first duly sworn, on oath, depose and state: That on the -- day of ----- ---, 19--,
----- a member of the ------ Tribe of Indians of the State of
--, published and declared the attached instrument to be his/ her last will and testament, signed the same in the presence of both of us and requested both of us to sign the same as witnesses; that we, in compliance with his/her request, signed the same as witnesses in his/her presence and in the presence of each other; that said testator/testatrix was not acting under duress, menace, fraud, or undue influence of any person, so far as we could ascertain, and in our opinion was mentally capable of disposing of all his/her estate by will.
$ 4.234 Witnesses, interpreters and fees.
Parties in interest who desire a witness to testify or an interpreter to serve at a hearing shall make their own financial and other arrangements therefor, and subpoenas will be issued where necessary and proper. The administrative law judge may call witness and interpreters and order pay. ment out of the estate assets of per diem, mileage, and subsistence at a rate not to exceed that allowed to witnesses called in the U.S. District Courts. In hardship situations, the administrative law judge may order pay. ment of per diem and mileage for indispensable witnesses and interpreters called for the parties. In the order for payment he shall specify whether such costs shall be allocated and charged against the interest of the party calling the witness or against the estate generally. Costs of administration so allowed shall have a priority for payment greater than that for any creditor claims allowed, except the probate fee. Upon receipt of such order, the Superintendent shall pay said sums immediately from the estate account, if such funds are insufficient, then out of the funds as they accrue to such account with the proviso that
Witness Subscribed and sworn to before me this -- day of -----, 19—-, by
-- testator/testatrix, and by ---
-- and --- attesting witnesses.
(Title) If uncontested, a self-proved will may be approved and distribution ordered thereunder with or without the testimony of any attesting witness.
(b) Self-proved codicils and revocations. A codicil to, or a revocation of, a