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Who guards the guardians?

‘Who guards the guardians?’ – original wills put at risk of loss, by law firms and High Court Probate Unit

Monday, 25 November 2019

Cheryl Simes (Kiwilaw)

Bereaved families need probate of a will (or letters of administration, if there is no will), in any estate involving general land or more than $15,000 in any financial institution. This is not optional. More than 15,000 grants of probate are made each year.

Probate lawyer, Cheryl Simes (Kiwilaw) identifies avoidable procedural defects that create unnecessary stress and risk for families at this difficult time.

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Every working day, at least 20 original wills are unnecessarily put at risk of loss.

That’s 100 a week.

They are the wills that are sent back to law firms by the High Court’s Probate Unit, with rejected applications for probate.

The Probate Unit rejects about one-third of the 80+ new applications it receives every day.[Letter from team leader (S Spiers) to Kiwilaw, 7 Nov 2019]

The Probate Unit takes inadequate care when returning original wills; and most rejections are unnecessary or avoidable.

Risk to original wills

The Probate Unit does not alert those law firms that the application documents are being returned. If the documents go astray (as has been known to happen), the loss may not be identified for another month or two, when someone enquires about progress.

If a will is lost, extra paperwork is required before probate can be granted of a copy of a lost will.

It is apparently too hard for the Probate Unit to alert anyone that they are sending the documents back. Phoning people would take too long. [Letter from team leader to Kiwilaw, 7 Nov 2019.]

The core function of the Probate Unit is to protect the integrity of wills. As Justice McKenzie observed in 2014 [Re Crawford (deceased) [2014] 3 NZLR 38 at [17].], ‘Preservation of the integrity of the original will is at the heart of probate practice.’ His Honour emphasised the importance of caring for the original will – a scanned copy is not an adequate substitute.

My doctor, dentist, and hairdresser manage to send me text alerts for appointments.

I alert clients when I am couriering documents to them.

The software exists, to allow the Probate Unit easily to send routine text messages (or email messages). It is not expensive or difficult to use.

I have not yet received an explanation as to why the Probate Unit cannot send email or text alerts.

Unnecessary rejections

Many rejections are for small, easily corrected errors.

Small variations that are not misleading and do not change the meaning of the documents should not be grounds for rejection. This is expressly stated in the High Court Rules governing probate applications (HCR 27.4(9).)

Errors that can be solved by a supplementary affidavit or an amended application document should not require the original will to be put at risk.

Applications should not be rejected for unexplained marks on the will, if the marks are not of practical importance. For instance, if a JP stamps an unnecessary ‘exhibit note’ on the will, it should not be necessary to file an affidavit explaining what happened, let alone to reject the original will after it has reached the safety of the High Court registry. It is obvious from the context; and it does not alter the meaning of the will.

Documents that use the term ‘executor’ should be accepted – and signed and sealed - even if the will uses the archaic female equivalent ‘executrix’. The two words mean the same. There is no substantive difference in the description. The description should only matter if it affects the identification of the executor.

Avoidable errors

Almost all probate applications are submitted by law firms. They charge handsomely for doing so. [‘Bereaved families paying too much for basic paperwork’ – Scoop, 31 Jan 2019]

They ought to be able to spell names correctly and follow a clear, albeit arcane, set of legal rules and principles when preparing what are almost always standard applications.

They should be able to identify when an explanation is required for staple holes or paper-clip indentations in the original will, or when the will-maker’s signature is shaky, or when there is no attestation clause (a statement that the will-maker and the witnesses were all present when each of them signed).

The contents of a particular probate application should be the same, regardless of the lawyer’s experience, location, or cost. The required wording is precisely specified in the High Court Rules, case law, and leading reference texts. There is virtually no discretion as to relevant facts or evidence. [Applications for validation of an informal will, or probate of a lost will, may require more expertise and discretion. However, almost all applications are for probate of a valid original will.]

It is human drafting that creates most of the mistakes.

Automation helps to avoid mistakes

Kiwilaw uses advanced automation to prepare probate-application documents – at significantly lower cost - that comply with the legal rules and principles with minimal human drafting and editing. Rejections of Kiwilaw documents for valid reasons are rare (and decreasing).

Kiwilaw’s probate service is now available not only to clients direct, but also to law firms.

For more information, see Kiwilaw’s website: https://kiwilaw.co.nz/probate.

Also relevant:
‘Bereaved families paying too much for basic paperwork’ – Scoop, 31 Jan 2019: http://www.scoop.co.nz/stories/BU1901/S00529/bereaved-families-paying-too-much-for-basic-paperwork.htm

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