by In New Zealand, the Ministry of Justice’s ‘File and Pay’ service now allows applicants to:
- file completed applications for probate or letters of administration online – by uploading scanned application documents instead of sending them by mail or courier – and/or
- pay the $200 court filing fee by credit or debit card (instead of by cheque or internet banking).
The High Court will not accept cheques after 31 May 2021. Payment by internet banking is still available.
Until now, you had to deliver or courier the hard-copy application documents to the Wellington High Court; and you had to pay by cheque or internet banking.
Now, once your application documents are all ready (including if you have used Kiwilaw’s online service to prepare them), you can choose whether to courier the hard copies to the High Court, or whether to upload them using ‘File and Pay’. (You still have to send the original will, if any, to the Wellington High Court, even if you use ‘File and Pay’.) ‘File and Pay’ is provided by the Ministry of Justice for the courts – it has no connection whatever with Kiwilaw.
The ‘File and Pay’ process is not as simple as it seems at first glance. When using it to apply for probate or letters of administration, applicants need to know the right information and additional documents required.
Need to know – for the File and Pay online form
The applicant needs to know:
- the ‘Court Type’ is High Court Civil
- the ‘Location’ is Wellington – for all applications for probate or letters of administration
- the ‘Case Type’ is Probate – even if they are applying for letters of administration rather than probate
- the ‘Filing type’ is ‘Probate’, or ‘Letters of Administration’ (where there is no will – intestacy), or ‘Letters of Administration with Will Annexed’ (where there is a will but no executor).
- the ‘Case Title’ and ‘Case Number’ can be left blank
If they are ‘filing’ (uploading documents) as well as paying, the applicant also needs to know:
- although they must upload a copy of the will (for probate, or letters of administration with will annexed), they must not unstaple the original will to do this.
- they are expected to upload additional documents that are not listed – see below.
Additional documents required
Grant documents
For probate applications, the applicant should also upload ‘probate in common form’ (with a copy of the will attached). This is not included in the list. If it is not uploaded at the beginning, it will be required later on. The list on the ‘File and Pay’ page includes ‘copy probate’ but not ‘probate in common form’.
For letters of administration applications, the applicant should upload ‘letters of administration on intestacy’ and ‘copy letters of administration on intestacy’, although these are not mentioned on the File and Pay page.
Similarly, for letters of administration with will annexed, the applicant should upload ‘letters of administration with will annexed’ (with copy of will attached) and ‘copy letters of administration with will annexed’, although these are not mentioned on the page.
Notice of choice of option
If the application is by the deceased’s surviving spouse or partner, and is an application for any type of letters of administration (on intestacy, or with will annexed) – not probate – the applicant’s notice of choice of option must be uploaded, although it is not mentioned in the list.
It can be uploaded as an additional document with the main application documents.
It can also be uploaded separately beforehand by choosing ‘Filing type’ as ‘Option B – s61(3) Election not to make application for division of property’ – if you do it this way, I assume you are supposed to tick the box for a ‘Combined Application’ – which is part of the online ‘File and Pay’ process.
Proof of identity?
The High Court Rules do not require a self-represented applicant to provide proof of identity.
‘File and Pay’ does not require proof of identity.
However, it has been the usual practice for the Auckland High Court registry to require proof of identity for self-represented applicants, especially when applying for letters of administration on intestacy. The Auckland registry now processes a proportion of probate applications from all parts of New Zealand.
Kiwilaw has included ‘certification of identity’ as a standard document for all clients who are self-represented applicants for probate or letters of administration.
I recommend that applicants still upload certification of their identity signed by the person who witnesses their affidavit.
(The name of the applicant as in their proof of identity must be exactly the same as in the application documents.)
Hard copies required?
After uploading the documents, the applicant must send the original will (and any codicils) – if any – to the Wellington High Court registry.
On asking for specific confirmation, I have been told that – for applications for probate or letters of administration – no other physical copies are routinely required. Not even the original affidavit, with original exhibits. (Email from Registrar Jared Doe, 12 March 2021).
However, the affidavit must still be signed and witnessed in hard copy, before being scanned and uploaded. Electronic signatures are not valid for affidavits. (Contract and Commercial Law Act 2017 s 218, Schedule 5 Part 3(d) and Part 4(b).)
As far as I know, exhibits attached to affidavits are still required to be originals or certified copies, even if you are then uploading a scan of the affidavit (including exhibits) instead of sending the hard copy.
Applicants must also keep the original documents safe. They may still be requested by the court.
My comments
If you are making a scan of each document anyway (which I recommend, as a security copy), uploading the documents to ‘File and Pay’ should be straight forward.
The Probate Unit prefers to receive applications by ‘File and Pay’.
If there is a will, you still need to courier that original will to the Wellington High Court. You may prefer to keep everything together and send the other hard-copy documents at the same time.
If you cannot keep the hard-copy originals safe after uploading a scanned copy, it is better to send the originals to the High Court and not bother with the upload.
If you are comfortable with uploading documents, use ‘File and Pay’ – especially if you are also paying by credit/debit card. If you are hesitant, use courier.
If you use courier, you must also include proof of payment of the filing fee.
If you use ‘File and Pay’ but don’t pay by credit/debit card, you will need to upload proof of payment by internet banking.
I like the promise of ‘File and Pay’ – I hope it will encourage people to use reputable online legal services more generally. At this stage I have no client feedback about how it works in practice.
Let me know how you get on.
Cheryl Simes – 13 March 2021
