KOSRAE STATE COURT TRIAL DIVISION
Cite as In re Skilling
12 FSM Intrm. 447 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 447]

IN THE MATTER OF NORMAN F. SKILLING,
Decedent,
 
FRED N. SKILLING,
Petitioner,
 
PROBATE NO. 11-02
 
ORDER
 
Yosiwo P. George
Chief Justice
 
Hearing: April 15, 2004
Decided: April 15, 2004

[12 FSM Intrm. 448]

APPEARANCE:

For the Petitioner:                Canney Palsis, Esq.
                                              Micronesian Legal Services Corporation
                                              P.O. Box 38
                                              Lelu, Kosrae FM 96944

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HEADNOTES

Domestic Relations ) Probate
     The filing requirements in probate proceedings, specifically require that all heirs be listed in the verified petition. The term "heirs" include the decedentís surviving adopted children. In re Skilling, 12 FSM Intrm. 447, 449 (Kos. S. Ct. Tr. 2004).
 
Constitutional Law ) Due Process; Domestic Relations ) Probate
     The omission of an adopted daughterís name from a verified probate petition, signed under oath by the petitioner, resulted in the failure to provide the adopted daughter her constitutional due process rights to be notified of the probate proceeding, have an opportunity to be heard and may have also affected her rights as an heir of the decedent. In re Skilling, 12 FSM Intrm. 447, 449 (Kos. S. Ct. Tr. 2004).

Contempt
     Neither the petitioner nor his counsel will be held in contempt of court when their failure to include the decedentís adopted daughter as an heir was not intentional since the petitioner did not inform counsel of the decedentís adopted child and counsel failed to ask the petitioner, who was a lay person not expected to know the lawís requirements and expected to rely on his counsel, to verify all of the decedentís heirs. In re Skilling, 12 FSM Intrm. 447, 449 (Kos. S. Ct. Tr. 2004).
 
Domestic Relations ) Probate
     Counsel is expected to know legal and procedural requirements for court filings and proceedings and is required to provide competent representation to a client, which includes the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. It is counselís duty to complete all preparation necessary to represent a petitioner in a probate proceeding, including investigating and obtaining all necessary facts to prepare the verified petition. In re Skilling, 12 FSM Intrm. 447, 449 (Kos. S. Ct. Tr. 2004).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On March 31, 2004, this Court entered an Order to Show Cause why Petitioner should not be held in contempt of court for failure to comply with GCO 2001-2. The hearing on the Order was held on April 15, 2004. Petitioner appeared with his counsel, Canney Palsis, MLSC. Jennifer Palik was also present at the hearing.

     The Order to Show Cause was issued sua sponte, and was based upon the Petitionerís failure to include Jennifer Palik as an heir of decedent Norman Skilling, in this probate proceeding. Jennifer

[12 FSM Intrm. 449]

Palik is a surviving adopted child of Norman Skilling. See Decree Confirming Customary Adoption, Civil Action No. 8-93. General Court Order 2001-2, Part I, which specifies the filing requirements in probate proceedings, specifically requires that all heirs be listed in the Verified Petition. The term "heirs" include surviving adopted children of the decedent. In this case, the Verified Petition, which was prepared by counselís office and signed under oath by the Petitioner, did not list Jennifer Palik as an heir of the decedent. This omission resulted in the failure to provide Jennifer Palik her constitutional due process rights to be notified of the probate proceeding, have an opportunity to be heard and may have also affected her rights as an heir of the decedent.

      Petitioner stated to the Court that he was aware that the adoption of Jennifer Palik had taken place. Petitioner stated that he believed that Jenniferís interests were represented by her natural father, Sterling Skilling. Counsel informed the Court that the Petitioner did not inform him that Jennifer Palik was an adopted child of the decedent. Counsel also added that he did not ask the Petitioner to verify all the heirs of the decedent. Even so, Counsel argued that there was no intent to defraud the Court.

     Based upon the information presented to the Court, I dismiss the order to show cause against the Petitioner. The Petitioner is a lay person and is not expected to know the requirements of the law and the GCO. It is appropriate and expected that the Petitioner rely upon his legal counsel to advise him as to legal requirements and to assist him in preparing documents which comply with State Law and the Courtís GCOs.

     Counsel for Petitioner is expected to know legal and procedural requirements for Court filings and proceedings. The Model Rules of Professional Conduct, Rule 1.1 requires counsel to provide competent representation to a client, which includes the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. It is duty of counsel to complete all preparation necessary to represent the Petitioner in the probate proceeding, including investigating and obtaining all necessary facts to prepare the Verified Petition in compliance with GCO 2001-2.

      Based upon the information presented at the hearing, I find that counselís failure to verify all the heirs of the decedent was not intentional. Therefore, I also dismiss the order to show cause against counsel for Petitioner. However, parties and counsel are put on notice that strict compliance with the factual requirements for Verified Petitions filed with the Court will be required, and that counsel are required to conduct all necessary investigation to comply with the filing requirements.

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