Many legal processes have been altered substantially during these unprecedented times to take into account the temporary inability of people to sign documentation face-to-face. Applications for probate and letters of administration are no exception.

While stopgap measures have been enacted through emergency legislation and with new and creative procedures for some legal processes, probate and letters of administration applications (being in their nature not usually terribly urgent) have in a sense ground to a halt.

Emergency legislation has allowed people to sign wills without the usually necessary two witnesses in the same physical place with them. Even before the legislation was passed, lawyers were creating wills and setting them up with the client so that if the client were to die before the will was signed in the usual way, an application to the court to declare the will valid (because the client had done everything to show that they intended to sign it in the usual way and they were simply prevented from doing so by the circumstances) was as well set up for success as it could be.

We have also published articles about creating wills and enduring powers of attorney and how they are signed during this time.

An application for probate has three main issues to overcome:

Firstly, an affidavit must be signed by the executor of the will (or, in the case of letters of administration, the proposed administrator of the estate) in the physical presence of a person who is authorised to take oaths in New Zealand (usually a lawyer, justice of the peace or a notary public). While the courts, in general, are accepting affidavits which have not been signed in the usual way (or sometimes affidavits which have not been signed at all) in urgent cases, this is not the case with the High Court probate unit. This brings us to the second point;

Secondly, even if a document such as an affidavit is signed other than in the usual way (for example, by audiovisual means), the most important thing is not how the document is actually signed but whether the organisation that is being presented with the document is willing to accept a document signed in that way. At this stage, the High Court probate unit will not accept affidavits signed by any means other than the usual personal presence. At any rate, they always insist on original signatures so a scanned version of a document, even if it was not signed by audiovisual means, would also not be acceptable; and

Finally, the organisation must have the means to accept and process the application remotely. While the High Court probate unit has already made great strides towards remote working during this time, they have not as yet provided lawyers with a means of sending them probate applications (other than urgent ones) to their team while everyone is working remotely. They usually will only accept applications by hand (which is our preferred method to save on waiting for the post given that we are located so close to their office) or by post. At the moment, email would be the only viable option for sending in applications.

The important exception to note is that the above does not apply for urgent applications. If an application is urgent, the High Court probate unit will accept the application by email and similar flexibility will apply in the signing of affidavits as the other courts are practising at the moment. This is in line with the philosophy in other legal processes and indeed in questions of how to complete things all around the country. If it is urgent and essential, rules will be flexible. If not, it needs to wait.

What we are doing at Morrison Kent is preparing all pending non-urgent applications for probate and checking them with our clients so that they are completely ready as soon as we move to a level that allows the affidavits to be signed in the usual way and the application to be brought to the probate unit. Nothing is stopping us from the preparation of the documentation and, using this method; we will be able to put the applications in very quickly as soon as the probate unit reopens which will hopefully avoid the rush.

We are sure that the probate unit will put in place extra resources as soon as they can resume fully to ensure that the backlog is worked through effectively. In the meantime, we continue to monitor the situation and are alert for any news as this rapidly developing situation continues to evolve.

We hope that this challenging time for the processing of applications will lead to innovation and improvement. The long and venerable history of these types of applications shows us that improvement and innovation are the foundation of this entire system – this is simply the next chapter.

For More Information

If you're interested in reading about the fascinating history of probate applications, we have published an article about that here. And if you require any assistance with probate or letters of administration, contact our specialist Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. Please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.