Probate centralisation should include both filing and processing
Ministry of Justice proposals to centralise filing of all probate applications should be extended to include centralisation of the probate granting process, the New Zealand Law Society says.
In its comments on a ministry discussion paper, Proposal to centralise filing of all applications for grant of probate and/or administration in common form and caveats against a grant of administration, the Law Society notes that its consideration of the proposal relates to a grant of administration only. It has not considered the proposal in relation to the High Court Rules.
The Law Society says centralising the filing of all applications should drive consistent standards across all applications and provide clarity as to the standard required.
However, under the proposal there are two points at which the form or content of an application could be deemed to be unacceptable or insufficient.
These are on consideration by the central team when the application is first made and on consideration by the local Registrar when providing a minute.
This means that under the proposed system, eight different outcomes would be possible. Several of these could result in return of the application to the applicant for amendment and re-filing.
“Under the current system, an applicant is likely to receive all relevant feedback at once, and it is very unlikely the application will be returned to the applicant twice,” the Law Society says.
“To minimise the double handling and the sending of applications back to the applicant on more than one occasion, it is recommended that both the filing process and the granting process are centralised in the same High Court location.”
The Law Society also considers the impact which the proposal will have on knowledge and expertise within the High Court registries. This could particularly affect lay litigants.
While the High Courts of Auckland, Wellington and Christchurch would probably still be able to provide advice to people who were unfamiliar with what was required, the High Courts which process few applications would gradually lose the expertise required to deal with all aspects of probate, administration and caveats.
This meant most High Courts, particularly those outside the three main centres, would be unlikely to provide assistance to anyone wanting to seek probate.
“The proposal may result in lengthy or delayed processing times if an insufficient number of qualified and experienced staff is allocated to work at the proposed centralised unit. Registries that operate well do so because of the long-serving, experienced and skilled staff who work within them.”
The Law Society says the detailed design of the proposed process must guarantee that there are enough experienced staff to run the centralised system. This pooling of expertise would create one expert body on probate and to ensure this is available to everyone, a phone line should be created to ensure it is available to everyone.