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Rule 72 – Appeals from the Probate Divisions

May 14, 2021 | Civil Procedure, Vermont

(a)Notice of Appeal; Appellee’s Appearance. Any party entitled thereto by law may appeal to the civil division of the superior court from a decision of the probate division by filing with the register of the probate division a notice of appeal in the manner and within the time provided in Rules 3 and 4 of the Rules of Appellate Procedure as modified herein. The appellant shall serve a copy of the notice upon each person who is considered a party at the time of commencement of the proceeding pursuant to Rule 17 of the Vermont Rules of Probate Procedure and shall transmit a copy of the notice to the clerk of the superior court for the civil division in the unit in which the appeal is taken. The running of the time for filing a notice of appeal is terminated by a timely motion pursuant to a Rule of Probate Procedure equivalent to those Rules of Civil Procedure listed in Rule 4 of the Rules of Appellate Procedure. The appellee and any other party shall cause that party’s appearance to be entered with the clerk of the superior court for the civil division within 21 days after service of the notice of appeal.
(b)Stay; Bond. During the time for filing a notice of appeal and pending the appeal if a notice is filed, the decree of the probate division shall be stayed as provided in Rule 62 of the Rules of Probate Procedure. Rules 7 and 8 of the Rules of Appellate Procedure shall govern appeals under this rule, so far as applicable.
(c)Record on Appeal. The record on appeal shall consist of the papers and exhibits filed in the probate division, a statement of the questions which the appellant desires to have determined, and any transcript of the proceedings furnished by the parties. No pleadings shall be required in the civil division. Within 30 days after the filing of the notice of appeal the register of the probate division shall transmit the papers and exhibits filed to the clerk of the superior court for the civil division in the manner provided in Rule 11(b) of the Rules of Appellate Procedure, and the appellant shall file a statement of questions with the clerk of the superior court for the civil division and serve it upon all other parties in accordance with Rule 5. The appeal shall be docketed and the record deemed complete as provided in Rule 12 of the Rules of Appellate Procedure. Any party desiring a transcript of any portion of the proceedings in the probate division to be included in the record on appeal shall order it by the method specified in Rule 10(b) of the Rules of Appellate Procedure. The transcript shall be filed in the probate division, delivered and paid for as provided in Rule 11(b) of the Vermont Rules of Appellate Procedure. The party receiving the transcript shall file it forthwith in the civil division.
(d)Trial. The questions contained in the appellant’s statement of questions shall be tried to a jury if one is demanded in accordance with Rule 38. Otherwise such questions shall be tried to the court. Proceedings under this rule shall be ripe for listing upon the hearing calendar in accordance with Rule 40(a) when the time for filing the record provided in subdivision (c) of this rule, and any extension thereof, have expired.
(e)Certificate of Decision. Thirty-five days after the entry of judgment, if no notice of appeal to the Supreme Court has been filed, the clerk shall certify the decision of the civil division to the probate division, returning therewith any original document transmitted as part of the record on appeal. Upon receipt of such certification, the same proceedings shall be had in the probate division as though the decision had been made in that court.
(f)Appeal of Interlocutory Order by Permission under 14A V.S.A. ยง 201(d).

(1)Motion for Permission To Appeal. Upon motion of any party in a probate action concerning the administration of a trust under Title 14A of the Vermont Statutes Annotated, the presiding probate judge shall permit an appeal to be taken to the civil division of the superior court from any interlocutory order or ruling if the judge finds that the order or ruling involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation. The motion shall be filed and served upon each person who is considered a party at the time of commencement of the proceeding pursuant to Rule 17 of the Vermont Rules of Probate Procedure within 14 days after the entry of the order or ruling appealed from. The appeal shall be limited to questions of law. The order permitting or denying appeal shall contain a statement of the grounds upon which appeal has been permitted or denied.
(2)Review by Civil Division of Denial of Motion. If the motion is denied, the moving party may, within 14 days after the entry of the order of denial, file the motion in the civil division, together with a statement setting forth the question of law asserted to be controlling, the facts necessary to an understanding of the question, and the reasons why an interlocutory appeal should be permitted. Copies of the motion and statement shall be served upon all parties upon whom the original motion was served. The order from which an appeal is sought, and the order of denial, shall be filed and served with the motion or as soon thereafter as is practicable. Within 7 days after service of the motion, an adverse party may file and serve an answer in opposition to the motion. The matter shall be determined upon the motion and answer without oral argument unless the civil division otherwise orders.
(3)Proceedings on Appeal. The order permitting appeal shall be filed and served and a copy thereof, together with the docket entries and entry fee if any, mailed to the clerk of the superior court for the civil division in the manner provided for notice of appeal in Rule 3 of the Rules of Appellate Procedure. The record shall thereupon be transmitted and the action entered, heard, and determined in the civil division as provided by this rule for other appeals.
(4)Motion To Dismiss in the Civil Division. At any time after the docketing of the appeal in the civil division, any appellee may move to dismiss the appeal on the grounds that permission to appeal was improvidently granted. The motion shall contain a statement of the facts necessary to an understanding of the question of law found controlling by the probate judge and a statement of the reasons why an interlocutory appeal should not have been permitted on such question. The civil division may order immediate hearing of the motion or may defer hearing until the time set for oral argument on the appeal. If at any time, upon such motion or upon its own motion, the civil division finds that no controlling question of law as to which there is substantial ground for difference of opinion has been presented or that a decision on such question would not materially advance the termination of the litigation, it may dismiss the appeal.
(g)Rules of Civil Procedure To Apply. Except as modified by this rule, the Rules of Civil Procedure, so far as applicable, shall govern proceedings under this rule.

Vt. R. Civ. P. 72

Amended Jan. 29, 1985, eff. July 1, 1985; March 6, 2002, eff. July 1, 2002; March 25, 2003, eff. July 1, 2003; July 10, 2012, eff. Sept. 10, 2012; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rules 72(a) and (f)(1) and (2) are amended to extend their 5-, 10- and 20-day time periods to 7, 14, and 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.