Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order.
The question is uniquely challenging when a probate lawyer is confronted with an order arising from an adversarial proceeding in a probate court. Initially, the will and estate lawyer will examine the probate order in the context of the Rules of Appellate Procedure which provides that the review of an order by the appellate court is authorized when there is an order entered in probate that finally determines a right or obligation of an interested person. This rule operates to broaden the scope of “finality” as that concept generally applies in civil matters. However, sometimes it no easy task determining whether an interested person’s rights have been “finally determined” in a probate proceeding. Where the rights of the parties as relates to their interest in the probate estate are not finally determined, then the orders are not deemed final for purposes of appeal.
The issue arose recently in In re Adoption of K.N.W. 2016-Ohio-5863 (Ohio App. 4th Dist., Athens Cty., September 9, 2016) when the court stated that a probate court’s “finding that the consent to an adoption of a party is not required is a final appealable order” (citing In re Adoption of Greer 70 Ohio St.3d 293, 638 N.E.2d 999 (1994),
The probate process has resulted in decisional case law in many jurisdictions, including Florida probate law and Ohio probate law, suggesting a limit on the scope of a final order in probate cases to only those that result in ultimate success or defeat for a probate litigant, however, there are many circumstances where a parties involved in probate and guardianship matters are subject to orders that finally determine a right or obligation of an interested person, but don’t necessarily decide the ultimate question of victory or defeat.