Executors of wills are waiting up to four months for the High Court to grant probate. The backlog is being blamed on covid-19 lockdowns, exacerbated by sick staff and the temporary closure of Wellington’s registry during last year’s anti-vax protest at Parliament.

Prior to covid, the expectation was a wait-time of four to six weeks and the prolonged delay is stalling many of the essential tasks the law obliges executors to fulfil. To reduce the backlog, practitioners are suggesting digitally enhanced processes, the separation of simpler applications from more complex estates and raising the probate threshold from $15,000 to more than $100,000.

The Ministry of Justice doesn’t think long-term solutions are needed as it works to hire and onboard more staff to help process applications, says chief operating officer Carl Crafar. Although the ministry does not know how long it will take to work through the backlog, it expects improvements over the coming months.

The current three-month standard is “optimistic if you get everything right and there’s no complication”, says Bill Patterson, managing partner at Patterson Hopkins and convenor of the ADLS Trust Law committee. “If you don’t get everything right and [the courts] have to requisition, then it can be quite a lot longer.”

Centralised process

Not every executor needs the court’s approval to distribute an estate. Probate is necessary only where a deceased person held more than $15,000 in one particular asset, such as bank account funds, shares or life insurance policies. The process ensures the deceased and beneficiaries’ interests are protected against the risk of assets being misappropriated or abused by those not authorised to distribute them.

Probate applications have been funnelled through the High Court at Wellington since 2013 after the Ministry of Justice centralised the application process. Registrars in all main centres then help with granting probate. Before centralisation, applications were filed at and dealt with by the registry closest to where the deceased lived at the time of his or her death. In concentrating expertise within one registry, Crafar says the ministry intended to drive consistency in the processing of applications, reduce the number requiring rework and improve the overall turnaround time.

Shorter wait times did eventuate – in 2016, the first issue of the Ministry of Justice’s Justice Matters newsletter claimed centralisation had halved processing times, down from 31 days. Crafar adds in the five years before covid, applications took between three to five weeks to process. While organisations such as the Public Trust and Citizens Advice Bureau advise a four to six-week processing period, grants can take longer depending on the registry’s workload or the case’s complexity. The current processing timeframe, as of March 2023, is up to 10 weeks, Crafar says.

Ballooning wait time

In Patterson’s experience, before covid, “you [would] get your grants [in] under a month”. However, wait times have since ballooned – in some cases taking up to 16 weeks, says Public Trust chief executive Glenys Talivai. And the delays are having knock-on effects. Barrister Ray Ganda says executors “can’t move” without probate.

A recent case took more than three months for executors to receive probate, Ganda says. After the deceased’s death, the running of his hospitality business halted and it eventually had to close while the executors awaited court approval. The lag held up crucial tasks.

“Employees didn’t get paid, the funeral directors didn’t get paid. Other business debts didn’t get paid because there was no one around to officially take over,” Ganda explains. “While the executors were around to organise the funeral, they can’t deal with banks without probate, they can’t deal with transferring the title over to themselves as executors and they can’t sell the business because they’re not duly appointed.”

Protest and pandemic

Patterson puts the worsening delays down to a backlog of applications that have piled up over the past few years. During the three-week anti-covid mandate protest in early 2022, Wellington registry staff couldn’t return to their offices opposite the parliamentary precinct because of the risk the protestors posed, he says.

While not all deceased people leave behind wills or estates, deaths have increased over the past three years. In 2022, registered deaths increased 10.4% on the previous year to 38,573, attributed to covid-19 and an ageing population. Four out of every five deaths in 2022 were of people aged 65 and older and 53% were of those aged over 80. In those age groups, covid poses an increased mortality risk.

In 2021, deaths rose 7.1% to just under 35,000. While 1,648 fewer people died in 2020 compared to the 34,261 deaths in 2019 – a reduction that StatsNZ said coincided with alert level restrictions – registered deaths from 2019 to 2022 have climbed 11%, continuing a general upward trend over the last decade. Moreover, while covid-19 lockdowns blunted the worst of the pandemic’s impacts, registered deaths increased in the months where restrictions were eased.

For instance, after Auckland moved to alert level 1 in March 2021, following two stints at alert level 3 in February, deaths rose 9% in the subsequent five months. That included the first two months of winter, which is typically deadlier than other months because respiratory diseases and the flu tend to thrive in colder weather. Deaths decreased 10% between August and December 2021 – the last of the country’s major lockdowns.

Liberty and livelihoods

Omicron’s arrival at the end of 2021 marked a shift to the covid traffic light system, with the gradual easing of vaccine passes, mandates, isolation periods and other restrictions by September 2022. In August, monthly registered deaths peaked at 3,972, with all but three months of last year recording deaths in the 3,000 range. Throughout the pandemic, courts and tribunals were deemed essential services. As far as it was safely possible, the High Court continued to prioritise proceedings that related to New Zealanders’ liberty and livelihoods or matters where resolution was time-critical, such as “urgent” probate matters.

As covid protection protocols evolved, the court kept accepting probate applications. “General registrar work will be carried out to the extent possible,” said Chief High Court Judge Susan Thomas in April 2022. Compounding the backlog were staff shortages due to illness during the omicron outbreak, Talivai says. Patterson feels sorry for the Wellington registry. “They’re just hopelessly overwhelmed…Being a probate registrar is actually not an easy job. It’s a bloody complicated one,” he says. “This job isn’t for someone who hasn’t got a lot of experience.”

No estimate

In addition to “other events which affected access” to the High Court at Wellington in 2022, Crafar confirms covid’s impact on staffing levels within the probate unit, with recent delays partially connected to the number of people available to process standard applications and do data-entry tasks.

The ministry is working to hire additional staff to pick up the slack, although the probate unit has members with the required experienced to progress complex applications, he says. Additional senior deputy registrars have been appointed and trained too. Asked how long it will take to work through the backlog, Crafar says, “The ministry does not have an estimate on this.” However, “with the additional staff coming onboard, the ministry is expecting to see wait times improve over the coming months”, with timeframes nearing pre-covid levels once the build-up has been addressed.

Solutions

Besides suggesting probate could do with another review, Patterson thinks raising the threshold to $100,000 would help; at $15,000, the current value is “miles too low” and has been “screaming out” for a fix-up. “If they freed up those numbers for very small estates, where you just had, say, two or three bank accounts and maybe a life policy or a small number of shares, if it’s $100,000, it doesn’t seem to me there’s any danger of anyone doing something wrong to allow [the grant of probate] to be done.”

Ganda says granting probate shouldn’t take too long where executors are duly named in a deceased’s will, the document has been sighted and affidavits and evidence have been provided. But where people die without a will, it’s understandable the court will make further inquiries. “You have to satisfy the court the requirements under the Administration Act are met, and there are no sprogs around who shouldn’t be or people trying to become administrators. There’s a right to object, there is a lot of complication involved,” he says.

Talivai offers another solution: “The ability to complete some of these processes using digital technology could significantly speed things up,” she says. “We are aware the courts are looking to digitise more of their processes in general and are supportive of their work in this space.” No digital solutions specific to probate are being worked on, but Crafar says the ministry and the judiciary are working to modernise the courts through a new digital case management system, Te Au Reka.

No merit

The ministry doesn’t see any merit in expediting straightforward applications, with Crafar cautioning such a move might hinder access to justice. “Currently, the only applications expedited are those where a grant must be made urgently. Often complex applications require additional work and take longer to process. Prioritising straightforward applications would simply delay complex applications further,” he says.

The $15,000 threshold is designed to allow executors to deal with small estates efficiently and inexpensively. And other good reasons exist: requiring probate helps prevent fraud and ensures estates are administered properly in according with a deceased’s wishes, Crafar says.

“It proves to everyone holding the deceased’s assets that the executor has the right to take the assets and administer the estate. An executor who does not have probate also does not get the same protection from liability and could become personally liable if other claims on the assets are upheld. These issues would need to be taken into account when considering whether the threshold should be increased.”

Crafar says the ministry has hit pause on reviewing succession law, including the Law Commission’s December 2021 recommendation to government to consider the monetary threshold, “due to other priorities in the Justice portfolio”.