The system of law that governs applications for probate, reseals, letters of administration and all their various related applications is the only vestige of a system of law that began in England in medieval times.
In an era where horsepower related to actual horses and megabytes only existed to the extent of a dragon happening to bite you, one would not expect anything to travel at the speed to which we are accustomed in modern times.
Add to that the disruptions to functionality the High Court probate unit has seen in the last few years and the current wait time to receive a grant of probate or letters of administration is enough to make the legal news.
Accordingly, as my work is as much about speedy and smooth probate applications as it is complex and international ones, I thought I might aid in the quest for the holy grail of a speedy probate application by sharing my tips on how lawyers can speed the process along.
Reduce the pressure
A situation where an application for probate is being made is almost always already a stressful situation for the clients and the lawyers. My number one tip for a smoother application is to reduce that pressure as much as possible.
To save on the pressure on and from your clients, I recommend telling them right from the start of the matter the rough amount of time you expect the probate application to take. In fact, I often overestimate the amount of time at the start and I tell my clients this is what I am doing - because a pleasant surprise of things happening faster than expected is so much easier on everyone than the other way around.
I sometimes find it worthwhile to give clients a brief explanation about why the system works in way it does, too. Having some information about why things might be taking time often makes waiting that time much more palatable and reassures clients that this is just how the system works rather than being any fault of their lawyer.
For a brief history of the probate system including an explanation about why it can be frustrating to a modern mind, see my article on the history of probate applications here: The History of Probate — N.J. Lowe & Company - Probate Law Consultancy (nzprobatesandreseals.com)
Also, at that start I always make clients aware of the possibility of an urgent track application if their circumstances require one (see below for more detail on urgent applications) so that they know they are not trapped by the system if their need for estate funds is urgent or becomes urgent while they are waiting.
Checking progress
If you are waiting on an application for probate, the probate unit is so busy at the moment that asking them where they are with the application simply increases their workload and they are often unable to answer.
However, you are able to check by calling the call centre on 0800 COURTS who can confirm whether your application has passed through the first steps of their system and, if it has been more than 12 weeks since the application was received, they can provide further details as well.
“Front-end” time saving
The knowledge of the time it takes for probate to be granted once the application reaches the probate unit means that there is an understandable push to get the application done and into the court as soon as humanly possible. However, I find slowing down at this early stage to allow careful checking of the drafts saves the most time.
For most legal work, a bit of rushing and a few little typos are no issue, but for probate applications they can result in the whole application being requisitioned and returned to be fixed.
Especially given that the postal system can also be rather slow at the moment, sending the entire application back and forth between lawyer and court in itself can add weeks to the process, let alone the work of actually fixing the issues.
Although rules 5.2(1) and 27.4(9) of the High Court Rules 2016 allow the registrars to overlook small and obviously accidental irregularities which do not affect the application as a whole, if there are more than 2 or 3 of them in one application, that in itself can lead to a requisition even with no other issues. Accordingly, the less errors in an application (even tiny ones), the smoother it can progress.
Make a feature of any mistakes
Because probate applications are so much about form, noticing where the form has been deviated from and pointing it out to the probate unit is an excellent way of avoiding delays.
If you have noticed a mistake that cannot be changed in your documentation or there is a circumstance that makes the situation a bit different than normal and no way to cater for it in the precedent forms, submitting the application as it is and hoping for the best might lead to a requisition.
Examples of these issues include documents that got signed slightly incorrectly (but not bad enough to need signing again), solicitor’s stamps being put on upside down, exhibit letters getting mixed up, page numbers falling off multi page documents, exhibit notes saying “sworn” when the affidavit was affirmed and a whole host of situations which require small edits to the forms. Also, when the fact situation is unusual like a recent case I saw with a couple getting married, divorced and then remarried to each other – all without updating their wills – which among other things played havoc with surnames.
The most useful tool I have found in this regard is the memorandum of counsel. Because the rest of the forms for an application are all written for you in the precedents and deviation from them is very limited, there is no other way to show the probate unit what has actually happened and what is obvious to you with the whole story at hand might not be at all clear to them when all they see is the application, affidavit, probate etc.
The memorandum of counsel is an entirely free form document and is therefore invaluable in allowing the lawyer to tell the probate unit the whole story of what has happened and to “show their work” in terms of what they did about it. You can also use plain English, which can be very helpful.
If the probate unit can see what has happened and can see that you have understood the issues that have arisen and taken wise steps to ameliorate them, that will often smooth over small issues and, if they are obliged to ask you for amendments, these will be as minimal as possible.
There is of course a line between what can be cured by a memorandum of counsel and what needs to be fixed through re-doing documentation, alteration to the forms or even making a different application altogether. However, for small issues, the time spent explaining things to the probate unit in one of these short documents is often richly repaid in time and frustration saved at the other end.
Urgent applications
The probate unit have the capacity to grant applications on an urgent basis when the circumstances require it and this can really assist the clients in those situations where probate is not just another box to tick, but an urgent necessity.
This is at the discretion of the probate unit on the facts of each case, but some examples include:
Where one of the beneficiaries is running out of money to live on while waiting for the estate assets to be unlocked by probate (particularly if that beneficiary is elderly, unwell, looking after dependents or in some other way unable to earn sufficient income in the meantime);
Where the estate is running a business which needs funds from the estate to function;
Where the estate holds a property that needs urgent maintenance and the estate funds are the only funds available to do so; and
Where the grant of probate in New Zealand is key to providing information for court proceedings here or in another country.
To request an urgent application, you provide a detailed explanation of the reasons for urgency being required in the cover letter when submitting the application and the filing fee is the same as a regular application.
If accepted, the probate unit can often make these grants in as little as 3-4 weeks, sometimes faster.
Particular care is required for these urgent applications to ensure that the application is as perfect as it can be so that the probate unit can simply focus on granting it quickly. An urgent application with lots of mistakes will not be able to be granted particularly quickly even if the reasons for urgency are most just.
Urgent applications are a good example of where a detailed memorandum of counsel explaining how a few small things were missed due to the pressing urgency of the application can save the day.
Resistance is futile
The sheer frustration which is understandably the result of all the factors at play in these applications can mean it is desperately tempting to resist what the probate unit insists on and start a lively legal argument on the subject. After all, that is what lawyers are most famous for being skilled at doing.
However, unlike most other situations, the probate unit’s staff are the experts in these types of applications; they do them much more often than any of us. Importantly, they also do not have the power to allow deviations from the rules: their role is as the upholders of the rules and they cannot change them even if they wanted to.
Within the context of actually making a probate application, the rules cannot be changed, so if you are able to resign yourself to the dictates of the probate unit being an immovable object and simply comply with them magnanimously, the whole process will move along faster than otherwise.
Ask an expert
At the risk of blowing my own medieval trumpet, it really is worthwhile to consult expert advice when you come across something complex or unusual with a probate application.
Ask your colleagues, ask friends at other firms; be creative in finding others who have successfully trod the same path you are facing.
As an example, experienced legal executives who have been doing these applications for (often) decades can be a golden source of assistance and are often modest about advertising their skills so you might not know to ask them initially.
If it is worthwhile to avoid the costly upskilling and instruct an expert, I both make applications for other practitioners (usually the most efficient route) and can also check your draft applications and point you in the right direction where that is more effective for you.
One way or another, try to leave as little guesswork and assistance to the probate unit as you can so that, when your application falls into their hands, they can see that all the considerations have been considered and have as little work to do as possible.
Conclusion
The probate unit is unable to be particularly lenient with irregularities, can only assist you to a limited extent and they are overloaded with work as it is, so getting the process as correct as possible before submitting an application for probate is your best bet for speed.
The Ministry of Justice have promised improvements in the time it takes for grants to be issued, but the tips above still apply and can save time and effort even when the probate unit is back to maximum speed.
This is genuinely a difficult time for everyone and the medieval way the probate system works can seem like the last straw. Accordingly, let’s reach out, support each other and try to see the lighter side of some of the crazy conundrums we all face together.
At least we’re not trying to work out the air speed velocity of an unladen swallow …