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shall inform all persons having an interest in the estate of the decedent, including persons having claims or accounts against the estate, to be present at the hearing or their rights may be lost by default.

(b) The notice shall state further that the hearing may be continued to another time and place. A continuance may be announced either at the original hearing by the administrative law judge or by an appropriate notice posted at the announced place of hearing on or prior to the announced hearing date and hour.

DEPOSITIONS, DISCOVERY, AND PREHEARING CONFERENCE

§ 4.220 Production of documents for inspection and copying.

(a) At any stage of the proceeding prior to the conclusion of the hearing, a party in interest may make a written demand, a copy to be filed with the administrative law judge, upon any other party to the proceeding or upon a custodian of records on Indians or their trust property, to produce for inspection and copying or photographing, any documents, papers, records, letters, photographs, or other tangible things not privileged, relevant to the issues which are in the other party's or custodian's possession, custody, or control. Upon failure of prompt compliance 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.

§ 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 law judge.

(h) Use of depositions. A deposition ordered and taken in accord with the provisions of this section may be used in a hearing if the administrative law judge finds that the witness is absent and his presence cannot be readily obtained, that the evidence is otherwise admissible, and that circumstances exist that make it desirable in the interest of fairness to allow the deposition to be used. If a deposition has been taken, and the party in interest on whose application it was taken refuses to offer the deposition, or any part thereof, in evidence, any other party in interest or the administrative law judge may introduce the deposition or any portion thereof on which he wishes to rely.

§4.222 Written interrogatories; admission of facts and documents.

At any time prior to a hearing and in sufficient time to permit answers to be filed before the hearing, a party in interest may serve upon any other party in interest written interrogatories and requests for admission of facts and documents. A copy of such interrogatories and requests shall be filed with the administrative law judge. Such interrogatories and requests for admission shall be drawn with the purpose of defining the issues in dispute between the parties and facilitating the presentation of evidence at the hearing. Answers shall be served upon the party propounding the written interrogatories or requesting the admission of facts and documents within 30 days from the date of service of such interrogatories or requests, or within such other period of time as may be agreed upon by the parties or prescribed by the administrative law judge. A copy of the answer shall be filed with the administrative law judge. Within 10 days after written interrogatories are served upon a party, that party may serve cross-interrogatories for answer by the witness to be interrogated.

[51 FR 18328, May 19, 1986]

§ 4.223 Objections to and limitations on production of documents, depositions, and interrogatories.

The administrative law judge, upon motion timely made by any party in interest, proper notice, and good cause shown, may direct that proceedings under §§4.220, 4.221, and 4.222 shall be conducted only under, and in accordance with, such limitation as he deems necessary and appropriate as to documents, time, place, and scope. The administrative law judge may act on his own motion only if undue delay, dilatory tactics, and unreasonable mands are made so as to delay the orderly progress of the proceeding or cause unacceptable hardship upon a party or witness.

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§ 4.224 Failure to comply with orders.

In the event of the failure of a party to comply with a request for the production of a document under §4.220; or on the failure of a party to appear for

examination under § 4.221 or on the failure of a party to respond to interrogatories or requests for admissions under §4.222; or on the failure of a party to comply with an order of the administrative law judge issued under §4.223 without, in any of such events, showing an excuse or explanation satisfactory to the administrative law judge for such failure, the administrative law judge may:

(a) Decide the fact or issue relating to the material requested to be produced, or the subject matter of the probable testimony, in accordance with the claims of the other party in interest or in accordance with other evidence available to the administrative law judge; or

(b) Make such other ruling as he determines just and proper.

§ 4.225 Prehearing conference.

The administrative law judge may, upon his own motion or upon the request of any party in interest, call upon the parties to appear for a conference to:

(a) Simplify or clarify the issues;

(b) Obtain stipulations, admissions, 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.

HEARINGS

§ 4.230 Administrative law judge; authority 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 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.

[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43133, Oct. 26, 1990]

§ 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.

(b) The proceedings of hearings shall be recorded verbatim.

(c) The record shall include a showing of the names of all parties in interest and of attorneys who attended such hearing.

[36 FR 7186, Apr. 15, 1971, as amended at 52 FR 26345, July 14, 1987]

§ 4.232 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]

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to act as witnesses there

to; 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.

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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.

Witness

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 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.

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therefor, and subpoenas will be issued where necessary and proper. The administrative law judge may call witness and interpreters and order payment 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 payment 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. Upon receipt of such order, the Superintendent must immediately initiate payment of such sums from the estate account, or if such funds are insufficient, then out of funds as they are received in such account prior to closure of the estate, with the proviso that such costs must be paid in full with a later allocation against the interest of a party, if the administrative law judge has so or

dered.

[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 27686, July 22, 1988; 66 FR 32889, June 18, 2001]

§ 4.235 Supplemental hearings.

After the matter has been submitted but prior to the time the administrative law judge has rendered his decision, the administrative law judge may upon his own motion or upon motion of any party in interest schedule a supplemental hearing if he deems it necessary. The notice shall set forth the purpose of the supplemental hearing and shall be served upon all parties in interest in the manner provided in §4.211. Where the need for such supplemental hearing becomes apparent during any hearing, the administrative law judge may announce the time and place for such supplemental hearing to all those present and no further notice need be given. In that event the records shall clearly show who was present at the time of the announcement.

$4.236 Record.

(a) After the completion of the hearing, the administrative law judge shall make up the official record containing:

(1) A copy of the posted public notice of hearing showing the posting certifications;

(2) A copy of each notice served on interested parties with proof of mailing;

(3) The record of the evidence received at the hearing, including any transcript made of the testimony;

(4) Claims filed against the estate; (5) Will and codicils, if any;

(6) Inventories and appraisements of the estate;

(7) Pleadings and briefs filed; (8) Special or interim orders;

(9) Data for heirship finding and family history;

(10) The decision and the administrative law judge's notices thereof; and

(11) Any other material or documents deemed material by the administrative law judge.

(b) The administrative law judge shall lodge the original record with the designated Land Titles and Records Office in accordance with 25 CFR part 150. A duplicate copy shall be lodged with the Superintendent originating the probate. A partial record may also be furnished to the Superintendents of other affected agencies. In those cases in which a hearing transcript has not been prepared, the verbatim recording of the hearing shall be retained in the office of the administrative law judge issuing the decision until the time allowed for rehearing or appeal has expired. In cases in which a transcript is not prepared, the original record returned to the Land Titles and Records Office shall contain a statement indicating no transcript was prepared.

[36 FR 7186, Apr. 15. 1971, as amended at 52 FR 26345, July 14, 1987; 52 FR 35557, Sept. 22 1987]

DECISIONS

$4.240 Decision of administrative law judge and notice thereof.

(a) The administrative law judge shall decide the issues of fact and law involved in the proceedings and shall incorporate in his decision:

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