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JUDICIARY ADDRESSES THE PROBATE CONCERNS
- 07 February 2024
The Judiciary agrees fully that probate matters take far too long and it has been repeatedly and consistently stating this in its attempts to have the situation addressed. It must be noted that the problem is three-fold as the issues relate to staffing, quality of applications and the resultant backlog of applications:
One must first look at the nature of the Probate process-
Probate matters are court cases done without an oral hearing. They include applications for letters of administration of diverse types. Over 5,000 probate cases are filed each year and each is between 15-85 pages long. The settlement of a probate matter involves the submissions and actions of attorneys, the review by the staff of the Probate Registry, the stakeholder who wishes to have a matter settled and many factors that may call into question the entitlement of an applicant to apply to administer an estate and the granting or refusal by the Court in the person of the Supreme Court Registrar
(1) Staffing
While this requires skilled and knowledgeable staff with knowledge of law, the Judiciary is hindered by the perennial problem of inappropriate staffing. Probate staff are required to review thousands of applications per year to determine whether they comply with law which is not always simple or clearcut. There is a need for a greater number of experienced staff attending to probate matters; staff who are selected for, skilled and trained in the area. This is a near-impossible feat with staff recruitment by and for a central civil service in which the processes, procedures and skill sets have little in common with the judiciary.
The Judiciary cannot function effectively if it is staffed by a central civil service nor can it be effective while its staffing or human resource management policies and procedures are dictated by policies that are not suited to a Judiciary. At present, clerks transferred from Government Ministries, Ministry of Labour relief staff, and On-the-job trainees are checking the legal work of lawyers. They work hard and often get it right, but for obvious reasons, they also sometimes get it wrong. The errors understandably bring the ire of attorneys and the public.
The Judiciary continues to be bedevilled by a staffing situation that has existed and was identified as far back as 1892 when a Commission reported to the then Governor, among other things, that:
“…The Registrar’s office appears to have been regarded as a Government Department to which a clerk could be promoted from any other office and promoted again from it to another. In point of fact the Registrar’s Office is one that requires a special training before a clerk can properly perform his duties, and no one, however great his general ability and official experience may be, can properly do all this work without some preparation… We venture to recommend that the Registrar’s Office should be considered a Department by itself, and that promotion should run as far as possible in that office…We venture however strongly to impress upon Your Excellency the undesirability of transferring a clerk from any other Government Department to the Registrar’s Office…”
Despite repetition by every Chief Justice, this situation in the Judiciary has not changed after some 132 years except that the caseload has grown exponentially and the negative effect of staff being recruited by and being part of a centralised civil service continues unabated. It has in fact worsened with systems of recurring temporary staff from the Ministry of Labour sent for 3 month periods, and “on the Job trainees” (OJT’s) many of whom may begin to become competent during their two year tenure but cannot then assume in the public service posts. They must instead leave, taking their unique training with them.
Inefficiencies are effects which are due to causes and it is unproductive to protest the effects while ignoring the causes. These causes have been made known and highlighted by every Chief Justice since independence and by several reports such as that of 1892.
The Judiciary, unless it is given some autonomy and made into a “closed shop” with the ability to determine its staffing needs, recruit and manage its staff fully, cannot hope to truly solve its efficiency issues.
(2) Quality of Applications
The issue of delay in Probate processing cannot be addressed in full without noting that the poor quality of many applications presents a significant problem for the Judiciary. Of the thousands of applications filed annually, roughly 80% are returned to attorneys with significant and justified queries.
Once an application has been filed, the staff of the Registry reviews the application to ensure that all requirements of the law have been met and to seek clarification of any errors or misstatements or unclear statements made in the application. Any issues identified upon review are put to attorneys in the form of a query notice. Senior attorneys have been known to file probate applications without attesting witness affidavits or file an application by common law spouses without the necessary orders.
Attorneys are required to file a supplemental affidavit to answer the queries and the Judiciary has noted a delay in the filing of those documents. Delays often may be between six (6) months and as long as three (3) years. Further when responding to queries attorneys often do not address all the queries highlighted or may not adequately address the queries. This results in a further query notice being issued for the outstanding queries to be addressed.
It must also be noted that the following facts have had a negative impact on the quality of the applications that are filed:
a) Many attorneys have their secretaries/clerks who are not legally trained draft these applications seemingly without review by the Attorney or even a highly skilled and experienced Probate Clerk before filing. Many secretaries/clerks prepare them by slavishly following precedents without an understanding of the law or the legal requirements of the particular type of application, thus raising queries; and
b) Some attorneys now at the bar have no formal training in this area.
(3) Backlog Eradication
Over the years a backlog has developed and backlog eradication measures are being undertaken. These however also require skilled resources. What has happened in the interim is that Registrars and staff have been working exceedingly long hours in an effort to reduce same. This is not sustainable.
The Judiciary continues to seek solutions to the current issues that affect the Probate Registry. In the last three years, several ameliorative measures have been undertaken by the Judiciary in an effort to address the issues plaguing the Probate Registry
- i.Placing annotated forms on the Judiciary’s website to assist applicants,
- ii. training sessions for the members of the Lawand others on the proper drafting of applications,
- iii.A system of managing searches through an e-probate portal,
- iv.The re-arranging and, cross-training of current staff in efforts toservice delivery in an already untenable situation.
- v.Creation of different tracks of matters to ensure timely review.
The situation that presents itself however involves issues that are in the main not in the hands of the Judiciary.
Recent meetings with the Prime Minister and a sub-committee of Cabinet have however provided hope and the Judiciary looks forward to the fulfilment of that hope. The Judiciary will continue to do all that it can, in the interim, to bring required relief to its customers.
Court Protocol and Information Unit