Resealing UK Probates in New Zealand

Jenny Lowe, Byron Sims and Oliver Phipps have collaborated in producing this article, as their relative firms specialise in multi-jurisdictional estate administration. Jenny Lowe is the Director of N.J. Lowe & Company Probate Law Consultancy, based in Wellington, New Zealand. Byron Sims is a solicitor in the International Private Client team at Lester Aldridge, based in Bournemouth, UK, where Oliver Phipps is a partner and head of the team.

Historical ties

Given that New Zealand and the United Kingdom have much shared history in our legal systems, one would expect that taking a grant of probate from the United Kingdom and presenting it to the New Zealand court for confirmation of its validity in New Zealand (a “reseal” of the grant), would be reasonably simple.

However, this is not always the case.

One of the issues that comes up quite often at the moment is that probates from England now do not attach a copy of the will to the probate.  Instead, the grant of probate refers to the will and notes that a copy can be ordered.

Resealing in New Zealand

In order to reseal in New Zealand, the court in New Zealand will insist that a copy of the will is produced in a way that they can be confident that it is the will associated with the probate. For example, it has a cover letter from the court which issued the grant or has been certified by a court officer. 

Ironically, if the probate were to not mention the will at all (even though by its nature a grant of probate is done when a will exists), then the New Zealand court does not insist on a copy of the will. Unfortunately for this scenario, English probates do mention the will.

In the case of letters of administration, these can be resealed with even greater ease because there is no will for a grant of letters of administration so the fact that it is not attached presents no issues. For a handy comparison of the difference between probate and letters of administration, see my article here: Probate and Letters of Administration – a handy comparison — N.J. Lowe & Company - Probate Law Consultancy (nzprobatesandreseals.com)

If you have an English grant of probate with no will attached, you will struggle to get it resealed in New Zealand without an accompanying court certified copy of the will.

Happily, there is an easy solution to this issue which will give the New Zealand court exactly what they want to see to grant a reseal or issue a new grant. Byron and Oliver have helped with the following explanation.

The practicalities in the UK

It is common for UK based asset holders to request a foreign grant be resealed in the UK.  However, it has become less common for the reseal procedure to be used in England & Wales, as the reality is that there is now little benefit in terms of cost or expediency (as explained in more detail in this article by our colleague, Rebecca Bright). Although the reseal procedure is slightly less advantageous in England & Wales, we understand that resealing a UK grant is still commonly used in many Commonwealth countries, such as New Zealand.

As those familiar with the process will know, when you apply for probate first in England & Wales, the court will insist on receiving the original copy of the Will, which they will keep. It will not then be possible to use the original Will to apply for further grant applications outside of that jurisdiction.

Probate registries around the world are generally aware of this and will not expect to be able to have the original Will, but will expect a copy that is practically “as good as” the original. Therefore, an ordinary certified copy will not suffice (be it certified by a solicitor or even notary public).

Official copy documents

In this case, you may need a certified or sealed copy of the Will produced by the court that issued the original grant.  One convenient way to apply for an authenticated copy of the English grant and Will is to apply for what is known as an “exemplification”.

An “exemplification” is presented as a bound copy of the grant and Will, which also bears the court seal running through all of the pages.  In England and Wales, it is possible to order an exemplification at the same time as applying for the grant, which is likely to be the easiest thing to do when you know that you will need an official copy. 

If, at the time of making your application, you were not aware that you may need an official copy, you do not need to worry – you can still request one at a later date. The fee is the same and relatively minimal, but there is likely to be some delay in receiving the requested copy.

You can ask for as many official copies as you think that you may need. This is likely to depend on how many foreign jurisdictions you think may require a reseal – or the equivalent. If, for example, there were assets in multiple jurisdictions, you may wish to apply for an exemplification of the grant and Will for each jurisdiction where the assets are located.

How can we help you?

In New Zealand:

If you are acting for an estate that has assets in New Zealand, but the only will is from another country, we would be happy to help. We make these applications often and streamline this complex process to make it easy for you. Even if you are a lawyer yourself, it can be worthwhile to entrust the probate application to a specialist and save you the time upskilling for an application you will very rarely be obliged to make.

For more information or assistance from our probates specialist, please send Jenny Lowe an email at jenny.lowe@nzprobatesandreseals.com.  

In the British Isles:

If you are administering an estate where you have obtained a foreign grant, court order or notarial declaration, and an asset holder in the UK has requested a reseal, we would be pleased to outline your options and how we can assist you.

Our team specialises in cross-border estate work and we offer both grant-only and full estate administration services.

Please do not hesitate to contact our international probate solicitors on 0344 967 0793 or online.enquiries@la-law.com.

The Quest for the Holy Grail: the Speedy Probate Application

The system of law that governs applications for probate, reseals, letters of administration and all their various related applications is the only vestige of a system of law that began in England in medieval times.

In an era where horsepower related to actual horses and megabytes only existed to the extent of a dragon happening to bite you, one would not expect anything to travel at the speed to which we are accustomed in modern times.

Add to that the disruptions to functionality the High Court probate unit has seen in the last few years and the current wait time to receive a grant of probate or letters of administration is enough to make the legal news.

Accordingly, as my work is as much about speedy and smooth probate applications as it is complex and international ones, I thought I might aid in the quest for the holy grail of a speedy probate application by sharing my tips on how lawyers can speed the process along.

Reduce the pressure

A situation where an application for probate is being made is almost always already a stressful situation for the clients and the lawyers.  My number one tip for a smoother application is to reduce that pressure as much as possible.

To save on the pressure on and from your clients, I recommend telling them right from the start of the matter the rough amount of time you expect the probate application to take.  In fact, I often overestimate the amount of time at the start and I tell my clients this is what I am doing - because a pleasant surprise of things happening faster than expected is so much easier on everyone than the other way around.

I sometimes find it worthwhile to give clients a brief explanation about why the system works in way it does, too.  Having some information about why things might be taking time often makes waiting that time much more palatable and reassures clients that this is just how the system works rather than being any fault of their lawyer.

For a brief history of the probate system including an explanation about why it can be frustrating to a modern mind, see my article on the history of probate applications here: The History of Probate — N.J. Lowe & Company - Probate Law Consultancy (nzprobatesandreseals.com)

Also, at that start I always make clients aware of the possibility of an urgent track application if their circumstances require one (see below for more detail on urgent applications) so that they know they are not trapped by the system if their need for estate funds is urgent or becomes urgent while they are waiting.

Checking progress

If you are waiting on an application for probate, the probate unit is so busy at the moment that asking them where they are with the application simply increases their workload and they are often unable to answer.

However, you are able to check by calling the call centre on 0800 COURTS who can confirm whether your application has passed through the first steps of their system and, if it has been more than 12 weeks since the application was received, they can provide further details as well.

“Front-end” time saving

The knowledge of the time it takes for probate to be granted once the application reaches the probate unit means that there is an understandable push to get the application done and into the court as soon as humanly possible. However, I find slowing down at this early stage to allow careful checking of the drafts saves the most time.

For most legal work, a bit of rushing and a few little typos are no issue, but for probate applications they can result in the whole application being requisitioned and returned to be fixed.

Especially given that the postal system can also be rather slow at the moment, sending the entire application back and forth between lawyer and court in itself can add weeks to the process, let alone the work of actually fixing the issues.

Although rules 5.2(1) and 27.4(9) of the High Court Rules 2016 allow the registrars to overlook small and obviously accidental irregularities which do not affect the application as a whole, if there are more than 2 or 3 of them in one application, that in itself can lead to a requisition even with no other issues. Accordingly, the less errors in an application (even tiny ones), the smoother it can progress.

Make a feature of any mistakes

Because probate applications are so much about form, noticing where the form has been deviated from and pointing it out to the probate unit is an excellent way of avoiding delays.

If you have noticed a mistake that cannot be changed in your documentation or there is a circumstance that makes the situation a bit different than normal and no way to cater for it in the precedent forms, submitting the application as it is and hoping for the best might lead to a requisition.

Examples of these issues include documents that got signed slightly incorrectly (but not bad enough to need signing again), solicitor’s stamps being put on upside down, exhibit letters getting mixed up, page numbers falling off multi page documents, exhibit notes saying “sworn” when the affidavit was affirmed and a whole host of situations which require small edits to the forms.  Also, when the fact situation is unusual like a recent case I saw with a couple getting married, divorced and then remarried to each other – all without updating their wills – which among other things played havoc with surnames.

The most useful tool I have found in this regard is the memorandum of counsel. Because the rest of the forms for an application are all written for you in the precedents and deviation from them is very limited, there is no other way to show the probate unit what has actually happened and what is obvious to you with the whole story at hand might not be at all clear to them when all they see is the application, affidavit, probate etc.

The memorandum of counsel is an entirely free form document and is therefore invaluable in allowing the lawyer to tell the probate unit the whole story of what has happened and to “show their work” in terms of what they did about it.  You can also use plain English, which can be very helpful.

If the probate unit can see what has happened and can see that you have understood the issues that have arisen and taken wise steps to ameliorate them, that will often smooth over small issues and, if they are obliged to ask you for amendments, these will be as minimal as possible.

There is of course a line between what can be cured by a memorandum of counsel and what needs to be fixed through re-doing documentation, alteration to the forms or even making a different application altogether.  However, for small issues, the time spent explaining things to the probate unit in one of these short documents is often richly repaid in time and frustration saved at the other end.

Urgent applications

The probate unit have the capacity to grant applications on an urgent basis when the circumstances require it and this can really assist the clients in those situations where probate is not just another box to tick, but an urgent necessity.

This is at the discretion of the probate unit on the facts of each case, but some examples include:

• Where one of the beneficiaries is running out of money to live on while waiting for the estate assets to be unlocked by probate (particularly if that beneficiary is elderly, unwell, looking after dependents or in some other way unable to earn sufficient income in the meantime);

• Where the estate is running a business which needs funds from the estate to function;

• Where the estate holds a property that needs urgent maintenance and the estate funds are the only funds available to do so; and

• Where the grant of probate in New Zealand is key to providing information for court proceedings here or in another country.

To request an urgent application, you provide a detailed explanation of the reasons for urgency being required in the cover letter when submitting the application and the filing fee is the same as a regular application.

If accepted, the probate unit can often make these grants in as little as 3-4 weeks, sometimes faster.

Particular care is required for these urgent applications to ensure that the application is as perfect as it can be so that the probate unit can simply focus on granting it quickly.  An urgent application with lots of mistakes will not be able to be granted particularly quickly even if the reasons for urgency are most just. 

Urgent applications are a good example of where a detailed memorandum of counsel explaining how a few small things were missed due to the pressing urgency of the application can save the day.

Resistance is futile

The sheer frustration which is understandably the result of all the factors at play in these applications can mean it is desperately tempting to resist what the probate unit insists on and start a lively legal argument on the subject. After all, that is what lawyers are most famous for being skilled at doing.

However, unlike most other situations, the probate unit’s staff are the experts in these types of applications; they do them much more often than any of us.  Importantly, they also do not have the power to allow deviations from the rules: their role is as the upholders of the rules and they cannot change them even if they wanted to.

Within the context of actually making a probate application, the rules cannot be changed, so if you are able to resign yourself to the dictates of the probate unit being an immovable object and simply comply with them magnanimously, the whole process will move along faster than otherwise.

Ask an expert

At the risk of blowing my own medieval trumpet, it really is worthwhile to consult expert advice when you come across something complex or unusual with a probate application. 

Ask your colleagues, ask friends at other firms; be creative in finding others who have successfully trod the same path you are facing.

As an example, experienced legal executives who have been doing these applications for (often) decades can be a golden source of assistance and are often modest about advertising their skills so you might not know to ask them initially.

If it is worthwhile to avoid the costly upskilling and instruct an expert, I both make applications for other practitioners (usually the most efficient route) and can also check your draft applications and point you in the right direction where that is more effective for you.

One way or another, try to leave as little guesswork and assistance to the probate unit as you can so that, when your application falls into their hands, they can see that all the considerations have been considered and have as little work to do as possible.

Conclusion

The probate unit is unable to be particularly lenient with irregularities, can only assist you to a limited extent and they are overloaded with work as it is, so getting the process as correct as possible before submitting an application for probate is your best bet for speed.

The Ministry of Justice have promised improvements in the time it takes for grants to be issued, but the tips above still apply and can save time and effort even when the probate unit is back to maximum speed.

This is genuinely a difficult time for everyone and the medieval way the probate system works can seem like the last straw. Accordingly, let’s reach out, support each other and try to see the lighter side of some of the crazy conundrums we all face together.

At least we’re not trying to work out the air speed velocity of an unladen swallow …

Prickly probates series: probate of wills made outside of New Zealand

With international travel starting to open up again, it is likely to continue to become more and more common for people to have multiple assets in multiple different countries representing the different places they have visited, lived or have relatives living.

People will often have a will in at least one of these jurisdictions, but they haven’t always taken legal advice on how that will is treated in the other countries where they have assets.  This can create interesting complications when the person dies, and probate applications are required. 

Even if they have taken advice on the issues arising, arranging a grant of probate for a foreign will in New Zealand is always a reasonably complex process.

The easiest solution: a reseal of probate

In the case where someone with assets in New Zealand dies and has no will in New Zealand, but does have a will from a Commonwealth Country, the process is reasonably straightforward in that we can apply for our High Court to put their seal on the probate of the will from the other Commonwealth Country. To understand more about a reseal and how assets in multiple countries are dealt with, see our articles here: Reseal of probate, Reseal of letters of administration - what are they? — N.J. Lowe & Company - Probate Law Consultancy (nzprobatesandreseals.com) and Estates with assets around the world — NZ Probates & Reseals (nzprobatesandreseals.com).

The jurisdictions where the reseal is the most common solution are Australia, anywhere in the United Kingdom (i.e. England, Scotland, Wales or Northern Ireland), Canada, Singapore, India, Fiji, Samoa and Malaysia. Also, Hong Kong (although it is not a Commonwealth Country) has a special exception which allows for reseals in New Zealand.

Probate of a foreign will

However, when someone with assets in New Zealand dies and has no will in New Zealand, but does have a will from another country that isn’t a Commonwealth Country, the only option to deal with the New Zealand assets is to probate the foreign will here.

The most common countries we find which require probate of a foreign will in New Zealand are Germany, Austria, The Netherlands, the United States of America, Japan and China, but any non-Commonwealth Country will require this procedure.

This procedure is also required in cases where there is a will from a Commonwealth Country, but that will was not granted probate in the country where it was signed. We find this happens most commonly with wills from Australia where often probate is not required for estates up to $50,000 Australian dollars in value (so smaller estates can be fully administered without probate) whereas in New Zealand probate is required if the estate owns an asset over $15,000 New Zealand dollars in value, which covers many more estates.

An application for probate of a foreign will is similar to a regular application for probate, but it has a few key additions.

• There must be an affidavit from a lawyer in the country where the will was made confirming that the will is valid in the country where it was made;

• There must be a translation of the will if it is not in English;

• There must also be an affidavit from the person who translated the will showing their qualifications and confirming that the translation is an exact copy into English of what is in the will; and

• Although it is not obligatory, proof that probate of the will has been granted to the same person applying here in the country where the will was made is helpful (if that has occurred) and an explanation of why it didn’t occur if it didn’t.

It will almost always be critical that the will is valid in the country where it was signed. Occasionally this isn’t the case depending on the citizenship and domicile of the will maker, where the actual signing of the will took place and whether the countries involved are signatories to the international conventions governing the validity of wills. Still, it is best to have a lawyer involved to navigate the complexities correctly.

Case Studies

I recently had a client who made a will to govern his assets located in New Zealand. The way the will was written and signed meant that it would have been valid in New Zealand, but because he was not a New Zealand citizen, was domiciled overseas and actually signed the will overseas in a country where it was not a valid will in the way he signed it, it was invalid in New Zealand as well.

Another complication is that some wills state that they only cover the assets in a particular country, in which case they can only be probated and used in the country whose assets they state that they cover.

I’ve had a case where a client made a will in the United Kingdom, which said it only covered her assets situated in the United Kingdom. She intended to make another will to cover her New Zealand assets, but she died before completing the New Zealand will. In that case, even though we had a perfectly valid will and probate in the United Kingdom (which we would otherwise have been able to reseal), we could not use it here, and she was treated as being intestate (i.e. having no will) in relation to her New Zealand estate and we were obliged to make an application for letter of administration in New Zealand.  For more on the differences between probate and letters of administration, see our article here: Probate and Letters of Administration – a handy comparison — N.J. Lowe & Company - Probate Law Consultancy (nzprobatesandreseals.com)

FOR MORE INFORMATION

If you are acting for an estate that has assets in New Zealand, but the only will is from another country, we would be happy to help. We make these applications often and streamline this complex process to make it easy for you. Even if you are a lawyer yourself, it can be worthwhile to entrust the probate application to a specialist and save you the time upskilling for an application you will very rarely be obliged to make.

For more information or assistance from our probates specialist, please send Jenny Lowe an email at jenny.lowe@nzprobatesandreseals.com.

Reseals of Probate and Original Wills

In almost all countries where we have had experience with their systems for granting probate, once the original will is submitted to the court for the grant of probate, the court retains the original will and will only release a copy. In some countries, the court retains the original will as soon as it is made.

if you then have assets of the estate in another country and the asset holders are insisting on a probate application being made in their country in order to release those assets to the executor, the court in that second country will also insist on receiving the original will.

This presents you with a “catch-22” problem because, in most instances, there is only one original will and it cannot of course be in two places at once.

Luckily, this problem has been faced many times, especially as people with assets in more than one country has become more common, and accordingly there are a number of solutions.

Reseal of Probate

If both countries are Commonwealth countries, you are able to take advantage of an application for reseal of probate. This means that the second country takes the probate granted by the first country and puts their seal on that probate without requiring the original will to be produced.

For a more detailed look into what a reseal of probate is, see our article here, and why you need one, see our article here.

However, a copy of the original will from the court which produced the probate is required in some circumstances depending on the wording of the original probate itself.

For more information on these requirements in relation to Australian reseals see our article here and for United Kingdom reseals, our article here.

Common examples of reseals in New Zealand are probates coming from Queensland, New South Wales, Victoria (or indeed anywhere in Australia), England, Scotland, Northern Ireland (or indeed anywhere in the United Kingdom) and Canada.

Probate of Foreign Wills

if the country where the original will was probated is not a Commonwealth country, we can still arrange for a grant of probate in New Zealand.

In that case, we make an application for “Probate of a Foreign Will” and this application includes an affidavit signed by a lawyer in the country where the original will was probated both confirming the original will’s validity, but also explaining to our court the procedure in the country of origin which means at that the original will cannot be produced.

In this way, our court is able to produce a grant of probate for a copy of the original will.

For more detail on this type of application, see our artilce here.

Common examples of these types of probates in New Zealand are probates coming from Germany, Austria, The Netherlands, United States of America, China and Japan.

Conclusion

If you find yourself in the unenviable position of having assets in New Zealand and two different countries insisting that you produce one original will, don't hesitate to contact us at jenny.lowe@nzprobatesandreseals.com and we can turn a “catch-22” into a smooth process which catches on nothing.

Prickly Probates Series - The Prickly Problem of Paper Fastenings

As we are now in the Silly Season, I thought I would write an article with a festive spirit. However, the ramifications of incorrect paper fastenings on original wills in applications for probate and reseal are far from funny.

It can often be an unpleasant and expensive surprise for the families of people who have died, and indeed even the lawyers themselves, how serious the High Court Probate Unit is about how the pages of a will are fastened together.

This isn’t due to any particular whim of the probate unit; it is the result of hundreds of years of history and law aimed at protecting the wishes of people who have died.

History of will fastenings

Over the years, when a will had more than one page, there have been many different methods tried and tested for attaching those pages together.

The ones I have encountered in New Zealand are (in order from most modern to almost never used anymore):

• A common metal staple

• A metal staple over a corner protector (a small piece of paper folded around the corner of the will)

• A strip of glue down the left hand side of all pages (a terrible idea in hindsight as the glue degrades over time and often the will is already in pieces when it comes out of wherever it has been stored)

• A brass pin

• A brass pin over a corner protector

• A long piece of green cotton tape woven and tied in a bow through three holes punched in the left hand side of all pages

• A short piece of cotton tape tied in a tiny bow through two holes punched in the corner, over a corner protector and the center of the bow sealed with a blob of sealing wax (I saw this on an Australian will, but I wouldn’t be surprised to see the same method in New Zealand)

The final two methods might seem ridiculous to a society so accustomed to the fast and cheap world of metal staples, but in many ways they are the best because they are quite permanent, difficult to undo and remind anyone handling the will (even if they are not a lawyer versed in the intricacies of probate applications) that the connection of the pages is important.

A simple metal staple is all too easily pulled out for something trivial like easier scanning of the document - and very often is.

I was once in charge of giving a junior lawyer her first introduction to the workings of the office and forgot to tell her never to remove the staples from an original will. She was terribly dismayed to have made the mistake when I asked her to copy a will, but she had no way of knowing as it isn’t something they tend to stress at university.

I now make it a running gag with every junior I meet to tell them this as my very first piece of advice and then ask them at random intervals for some months afterwards: “What is the most important thing I’ve ever taught you?” and the answer is (with a wry smile) “Never take the staples out of wills”.

What the court is looking for

When a will comes to the court, they handle the document in detail and check it for many things including whether the pages have always been fastened together. Clues to the court that the pages may have been taken apart at some stage include:

• the pages being loose (i.e. having no fastening at all)

• there being a second (or third) set of staple holes showing that a staple has been removed and another put in its place

• the corner is damaged to a point that it is unclear whether the original paper fastenings are in tact

This is the reason why the original will must be delivered to the High Court in all probate applications unless there is a very good reason why it cannot be (i.e. it has been lost). See our article about probates of lost wills here.

Reseals of probate

Reseals of probate are our court putting their seal on a probate document from a court in another country, so re-stapling of the pages is less important provided it is clear that the whole document is related (and the original court very often stamps every page to ensure this is clear).

We have several articles on the subject of reseals of probate: a basic explanation of them here and the issues about what is attached to them focusing on Australian reseals here.

It is very important in a reseal that if the probate document mentions a will, that will is attached to the probate by the court that granted the probate (or at least included with a letter or stamp from the same court connecting it with the probate).

We once had a client whose lawyers in Australia obtained probate, and the will was attached by the court, but the will was large and the lawyers decided the document was too bulky and removed the will and sent us only the probate. The amount of extra work that caused was well over the amount saved in postage!

Reasoning for their importance

If you haven’t been through the type of training I give my colleague junior lawyers (and lawyers handling wills down through generations have given their new staff), you will at this stage probably be wondering whether this entire article is a Christmas practical joke.

However, the reason for the probate unit’s particular interest in the fastening together of the pages of the will is quite simple and common sense.

Probate law is a type of law which has been around since mediaeval times and you can imagine over the years many instances of someone dying and an immoral friend of family member (or even lawyer!) finding the original will and quietly removing/inserting a page so that a large bequest was left to them (or they received some other benefit) before handing it over to the court for probate.

Original wills are documents which govern the distribution of often considerable assets and the person whose wishes they encapsulate, at the time of probate, is no longer available to us to point out if their original wishes have been meddled with.

if you’re interested in the history behind probate applications, we have an article entirely dedicated to the subject here and I can absolutely imagine a scene in the pages of Dickens (in a dim room lit only by candles with the snow falling outside) where the will was taken apart to achieve dasterdly ends, can’t you?

Many lawyers arrange for their client and both witnesses to initial every page of the will when they sign it to assist in cases where the paper fastening might be lost. The court is understandably much more comfortable if the staple has been removed, but the pages are numbered and all initialed.

This is just a best practice, though; section 11 of the Wills Act 2007 which governs the validity of wills does not require every page to be initialed and many wills do not end up with initialed pages.

What to do if the staples have been removed

As above, the court is much more comfortable if the pages are numbered and initialed and more comfortable still if the fastening was taken out in a lawyer’s office because it is much more likely someone did so because I forgot to give them my usual teaching and much less likely that the lawyers or staff have anything to gain by inserting or removing a page.

In these cases, an Affidavit of Plight signed by the lawyer who took the staples out (or even by the lawyer in charge of the staff who took the staples out) pointing out the extra holes and explaining that it was done accidentally at their office in the process of administration will almost always solve the problem.

If the fastenings were taken out by the family/friends of the deceased or indeed the will was in their care but they have no idea how they came to be removed, much more information will need to be provided to the court (usually through affidavits from everyone who had care of the will before it came to the court) including:

• proof, if it exists, of what all the pages originally said (such as a copy taken at the lawyer’s office when the will was signed)

• information about the deceased’s family, financial and life situation to show what the will says is likely to be an accurate record of their wishes

• conversations the deceased had with others about the contents of their will before they died

This extra complication represents another good reason to store your will with your lawyer - and for more good reasons see our article on the subject here.

No matter what the reasons behind it, if you are putting in an application for probate and the paper fastenings on the original will are at all suspect, you are best to address this with the court in your initial application instead of putting the application in and hoping the probate unit won’t notice.

Conclusion

The next important piece of advice is not to leave original wills in any place where they might be splattered by an overturned cup of coffee. That is the subject of another article in itself.

As always, if prickly probates are giving you palpitations, we are always prepared to be your partner in a pathway forward.

Our probate specialist Jenny Lowe can be contacted at jenny.lowe@nzprobatesandreseals.com.

We wish everyone a safe, peaceful and enjoyable holiday season and all the very best for 2023.

Australian Reseals of Probate and Letters of Administration in New Zealand - Current Issues

Australian Reseals of Probate and Letters of Administration in New Zealand

Only last week I was contacted by an Australian client surprised to find out that her mother (who lived and died in Australia) had a substantial bank account in New Zealand - a bittersweet windfall discovered over a decade after her mother’s death!

With trans-Tasman travel and living arrangements rising in popularity for many years, more and more people in Australia are finding that, when a loved one dies, some of their assets are "over the ditch".

They are also finding out that the grant of probate or grant of letters of administration they received in Australia needs to be resealed in order to access the assets in New Zealand.

Australian reseals

The most common states we are finding requiring reseals in New Zealand are Victoria, New South Wales and Queensland.

However, Western Australian, South Australia and Tasmania are also reasonably frequent and these states seem to have the probate systems most like that in New Zealand which results in the smoothest reseal applications.

Why is a reseal required?

One would think that uplifting estate assets between New Zealand and Australia, being such close neighbours, would be the simplest of processes, but because an international border has been crossed, another court application for a reseal of that original probate or letters of administration is required.

If you would like to learn more about why reseals are required, we have a recent article on the very valid question of “Why do I need a Reseal?” here.

When probate or letters of administration are granted, the court which makes that grant “seals” the document by placing a stamp, a sticker or an imprint on it. This is called the court “seal” as originally these were all made of sealing wax. The seal is what turns the document into a valid grant that can be used to unlock the assets of the estate. 

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it. That transforms the document from a grant of probate that is only valid in New South Wales, Australia (for example) into a grant of probate that is valid in New Zealand as well. 

Banks, Kiwisaver and insurance providers here in New Zealand won’t accept an Australian grant in order to release the estate assets. However, if you get that same grant resealed in New Zealand, they will accept it because it will have that all-important seal of the New Zealand High Court.

If you would like to learn more about reseals in general, have a look at our article here.

Reseal current issues

Each state in Australia produces a slightly different probate document and have their own procedures for producing them. There have been a number of changes in recent years, especially since the outbreak of the pandemic, which are making it easier and smoother to apply for probate or letters of administration in Australia itself, but these differences can cause problems for reseals in New Zealand and sometimes require an extra step to be taken before our court will grant the reseal.

The Supreme Court of Victoria in particular with their heavily electronic based RedCrest probate system is providing the most common source of issues for New Zealand reseals.

The extra step is usually not terribly difficult; it almost always means that you will be obliged to apply to the Australian court which issued the grant for a different type of copy of it (often called an “exemplification”). However, this is a cause of extra time and expense in the process, so if you are expecting to need a reseal in New Zealand, it pays to order the type of copy our court will need at the same time you make the initial application for the probate or letters of administration in Australia.

The most common issues we are seeing are:

• probates where the will is not attached, but the probate refers to a will:

  • our court requires a probate that refers to a will to have that will attached by the court which issued the probate; or

  • for the will to be provided with a note or covering letter from the court which issued the probate showing that it is the will associated with the probate in question; and

• probates and letters of administration which are only issued in electronic form:

  • our court considers these valid, but requires a paper document from the court which issued the probate to grant a reseal; and

  • New Zealand banks, Kiwisaver, insurance providers and other asset holders will require that paper document reseal as well.

Letters of administration are granted when there is no will, so in those cases nothing needs to be attached to the grant of letters of administration for us to arrange a reseal, but it still needs to be a paper copy of letters of administration.

See our handy comparison article for an explanation of the difference between probate and letters of administration here.

For more information

If you are dealing with an estate where a reseal is required in New Zealand, Jenny Lowe will be happy to help. You can email her at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, especially those coming from overseas. We specialise in making these applications simple and painless for you.

The Steps to Probate in New Zealand

What is a probate application?

A probate application in New Zealand is an application made to the High Court in Wellington where the court accepts an original will from a person who has died and produces a document (the probate) which allows the executors appointed in the will to take possession of the assets of the estate. For a more in-depth explanation of probate, see our article here.

Probate applications are some of the most challenging applications to make to the court. The reason for this is that they are the only surviving part of a mediaeval system of law; a system which required the application to be made using precise words. If you are interested in the fascinating history of probate applications, have a look at our article here.

Because of this, probate applications can seem a frustrating and mystifying process, but they don’t need to be.

This article gives you a blow-by-blow summary of the process for a simple probate application so you can see all the steps; right through the process to when the court produces the grant of probate.

First steps

Our first step involves us asking the executors for information and documentation about the estate.

Examples of the information we require include:

• Date of death: which is often provided by scanning us a copy of the death certificate;

• The updated addresses and occupations of the deceased and the executors: often the will gives addresses and occupations for the deceased and the executor, and if these are out of date, the probate application must note the current details;

• Whether all the executors are willing and able to run the estate: if one or more have died, lost mental capacity or don’t work well enough with the other executors to complete the tasks required of them, a different application might be required;

• A copy of the will: a scan is fine at this stage, but the original will be needed (see below);

• Whether the pages of the original will are attached together and whether they have ever been taken apart: usually this is obvious because there are extra staple holes in the will other than the ones with the current staple. Even an indent of a paperclip where something has been clipped onto the original document will require an explanation to the court; and

• How the executors would like to sign the affidavit: whether the executors would like to swear the affidavit (which involves holding the Bible) or whether they would prefer to affirm the affidavit (where you don’t hold anything and confirm that you bind yourself by the Oaths and Declarations Act 1957 instead).

The application itself

We then prepare the application for the court based on the information provided.

The next steps are:

• We send the executors the draft affidavit to check. The affidavit is the part the of the application the executors have to sign, so they need to check that everything it says is true and correct from their point of view;

• Once the application is prepared, the executors sign the affidavit. They can sign by seeing any solicitor in New Zealand (who will usually sign an affidavit free of charge). They can also use a Justice of the Peace. If they are overseas, ideally a notary public should be used to sign the affidavit;

• The affidavit must be signed by each executor with the original will present (and their witness signs an exhibit note which is attached to the original will);

• Once the affidavit is signed, we complete the rest of the application and submit it to the court along with the original will. Because we are walking distance from the High Court in Wellington (where all the probate applications for the country are granted), we deliver our probate applications by hand so that there is no risk of them getting lost in the post and there is no delay in the process by waiting for delivery to the court;

• The court usually takes 7 to 9 weeks to produce the grant of probate once the application has been received at the moment due to delays surrounding COVID-19 and the resultant backlog, but under normal circumstances it is more along the lines of 6 to 8 weeks; and

• If the circumstances require it, we can make an urgent application which only takes 2 to 4 weeks;

• As soon as we have the grant of probate from the court, we email the executors a certified true copy (which is usually sufficient for asset holding organisations to release their assets) and post them the original.

Do you have a probate application to be made?

We will be happy to help. Here at N.J. Lowe & Company - Probate Law Consultancy, we have one of the few legal specialists in New Zealand for these types of applications, covering everything from the simple to the complex. Contact Jenny Lowe now at jenny.lowe@nzprobatesandreseals.com.

Reseal of probate, Reseal of letters of administration - what are they?

This is an example of the type of seal that might be resealed

In New Zealand, both probate and letters of administration can be granted for an estate where the deceased lived and died in New Zealand. They may also be granted for estates where the deceased lived and died in another country, but had assets in New Zealand.

These applications are reasonably complex. However, there is a simpler alternative. If you have an estate which meets certain criteria, an application for a reseal can be made.

What are the criteria for a reseal in New Zealand?

In order for the court in New Zealand to grant a reseal of probate or letters of administration, there first needs to be a grant of probate or letters of administration that was already made in another country.

The next criteria is that other country needs to be a member of the Commonwealth or there is one exception which is Hong Kong which is included by statute as one of the countries where a reseal can be made in New Zealand.

Common examples of countries requiring reseals in New Zealand are Australia, anywhere in the United Kingdom (i.e. England, Scotland, Wales or Northern Ireland), Canada, Singapore, India, Fiji, Samoa and Malaysia.

What is a reseal?

A reseal is as simple as it sounds. When probate or letters of administration are granted, the court which makes that grant “seals” the document by placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal is what turns the document into a valid grant that can be used to unlock the assets of the estate. Without it, all, you have is a piece of paper.

A reseal is when a court in one country, New Zealand for example, takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it. That transforms the document from a grant of probate that is only valid in Australia, for example, into a grant of probate that is valid in both Australia and New Zealand.

The procedure is that the original grant of probate or letters of administration (or a copy, certified on every page by the court which made the grant) is given to the High Court of New Zealand with an application for reseal. Then the original or copy will be returned once it has been resealed and it will bear that important second stamp.

For the very valid question of why you need a reseal, see our article here.

Do you need a reseal?

Here at N.J. Lowe & Company - Probate Law Consultancy, we have one of the few lawyers who specialise in obtaining reseals, probates and letters of administration from the New Zealand High Court for international estates with assets in New Zealand. If you are acting for an estate with assets in New Zealand, get in touch with Jenny Lowe today on jenny.lowe@nzprobatesandreseals.com for a painless and straightforward approach to your application for a reseal or any other related application that needs to be made.

Why do I need a reseal?

This is an example of the type of seal that might be resealed

The title of this article is a very valid question and one we are asked time and time again.  Once you have gone through the complex and sometimes tiresome process of obtaining probate or letters of administration in the country where someone has died, it can often be an unpleasant shock to find that the assets which are located in another country require another court application in that country to prove all the same things.

Sometimes these documents might be called a “reseal of probate” or a “reseal of letters of administration”, but they represent a very similar concept, so for ease of reference in this article we will call it a “reseal” for short.

Reseals are not a tremendously common application for most lawyers to make and so they can often seem more mysterious than they really are. In this article, we will set out all the practical detail you need to get to grips with reseals in New Zealand.

What is a reseal?

First of all, what is a reseal? Essentially, when the court makes a grant of probate or letters of administration, it puts a court seal (which is usually a stamp or an embossed sticker) on the document to show that it was granted by the court.  The photograph accompanying this article is a good example of the type of seal the courts use.

A reseal is simply another court, the court in New Zealand in this case, putting a second seal on that same document to show that this second court considers it valid in their jurisdiction. If you would like more detail on what a reseal is, we also have an article on the subject which you can read here.

What organisations ask for a reseal?

The types of organisations that require a reseal in New Zealand are organisations which are holding assets on behalf of the estate. These include banks, superannuation schemes, insurance policies and Land Information New Zealand (which is the organisation in charge of managing the register of ownership of land in New Zealand).

The major New Zealand banks include TSB, ASB, ANZ, BNZ, Westpac, Cooperative Bank and Kiwibank and if your asset holder is a superannuation scheme it may well be Kiwisaver.

Why do these organisations require a reseal?

If you have travelled overseas, you will have had the experience of much of your documentation (other than your passport, of course) not being accepted even though it is perfectly valid at home. 

The same applies for grants of probate or letters of administration.  They are valid everywhere in the country where they were issued, but they are country specific and have limited use as soon as a border is crossed.

Asset holders have to be especially careful, as you can imagine, deciding to whom they will release the assets they are holding once the owner has died.  A grant of probate or letters of administration is essentially a document which allows assets of someone who has died to be handed over to another person who promises to fulfil the wishes of the deceased owner, so they are a very important safety measure to make sure the assets of people who have died go to the right places.  For more detail about what grants of probate and letters of administration do, have a look at our article here.

A bank, for example, in New Zealand cannot be sure that any documentation from another country is valid and the correct document.  Only when you present them with a document with a seal from the court in their country (a reseal, in this case) can they be sure that you are entitled to receive the assets.

Reseal countries

Reseals in New Zealand are only available, however, when the original probate or letters of administration comes from a Commonwealth country or Hong Kong (which is included by special exception).

Accordingly, if your original probate or letters of administration is from Australia, anywhere in the United Kingdom (i.e. England, Scotland, Wales or Northern Ireland), Canada, Singapore, India, Fiji, Samoa, Malaysia or any other Commonwealth country, we can reseal it here in New Zealand.

If, however, your original probate or letters of administration is from, for example, Germany, Austria, The Netherlands, the United States of America, Japan, China, or any other non Commonwealth country, we can still get a grant for you here in New Zealand, but it won't be a reseal. In these cases, we will get you a grant of probate or letters of administration in New Zealand. If you would like to know more about the difference between probate and letters of administration in New Zealand, you can read about it in our article here.

If you require a reseal

If you are in the position of requiring a reseal, take heart; first of all, it could be worse in that the applications for countries which cannot reseal are much more complex and, second of all, we can make the process as simple and painless for you as it is possible to be.  Simply send us an email at jenny.lowe@nzprobatesandreseals.com and we will set you on the track of moving past this roadblock and receiving those assets.

Q&A with probate specialist Jenny Lowe

In this article by Jacqueline So, our probates expert Jenny Lowe answers some questions for NZ Lawyer Magazine. Originally published at https://www.thelawyermag.com/nz/news/general/probate-applications-specialist-on-lawyers-being-the-best-clients/418278:

Young Jenny Lowe’s original plan for her future was to be a World War One Fighter Ace, but the impossibility of that plan led her to maximise her skills in English and problem solving to become a lawyer instead. 

Since then, Lowe has become a specialist in probate applications – an expertise that has now led her to break off and form her own firm, N.J. Lowe & Company – Probate Law Consultancy. In the coming year, she is eager to serve lawyers – who she says “make the best clients”. 

In this interview, Lowe talks implementing a “zero trust” tech security policy, realising the value of personal health after sustaining a concussion and her innovation-minded great-great uncle who broke the mould. 

What made you choose a career in law, and what's your favourite part of the job? 

I mainly chose a career in the law through lack of alternative planning (or, at any rate, my plan up until that point to become a World War One Fighter Ace had a number of fatal flaws which should have been obvious to me even at that tender age). I reasoned that I was good in English class, and I enjoyed solving complex problems for others and so the law should suit me.  That has turned out to be a good evaluation, albeit one made in haste. 

My favourite part of the job is receiving a tricky grant of probate from the court which has caused a significant roadblock for my client (sometimes for years) and composing the e-mail delivering the news to them while I imagine how triumphant they will be. 

What is going on at the organisation? Are there any new programs and initiatives that you’re particularly interested in? 

The biggest new initiative at my organisation is the creation of my organisation! Although I have specialised in probate applications for seven years, it has always been a part of the many different types of work that I completed for my jobs at larger law firms. Now what I propose to do is create a practice which does only probate applications and the advice surrounding them.  

At the time of writing this, I am awaiting approval to practice on my own account from the Law Society, so the plan will be conditional on that, of course. 

What tech-related initiatives adopted by the organisation, if any, are you most excited about? 

In my new practise, I intend on trying the “zero trust” model of technology security.  

My understanding, which I admit it is rudimentary, is that the more common scenario for law firms is to build the technological equivalent of a mediaeval castle complex where the information to be protected is on the inside surrounded by moats, ramparts and defensive ditches. Once someone is authorised to be inside the castle walls, all of the information is available, unencrypted and easy to access. 

The potential problem with this scenario is that the computer hacking community are (as the armies of castle era warfare were before them) constantly thinking up new ways to breach the walls. All it takes is for one staff member who does have access to the system to open an attachment from an unsafe source and all of the information is there for the taking for the hackers because everyone inside the castle walls is treated as an authorised user and has access to everything. 

The “zero trust” model, on the other hand, treats every user as if they are a potential threat and checks their credentials for having access to the information and retaining access to that information constantly. Each application that contains client information in my system requires biometric and/or dual factor authentication for me to sign in in the first place and then logs me out after a certain period of time or when it senses that it is no longer me looking at that information.  

My laptop will lock itself not only when it is turned on and off, but every time my gaze leaves the screen or my head disappears from its view. This sounds terrifically tiresome in that it involves extra steps in what is already a busy day, but with the right technology and systems of working, I understand that it can be built into a seamless experience and certainly my experiments so far have borne this out. 

I have discovered one downside this week, however; with the chilly temperatures we have been experiencing in Wellington, I have taken to wearing a big woolly hat even while indoors and my facial recognition on my laptop cannot cope with the hat sliding down over my eyebrows. So far, my work around is simply to keep pushing up my hat and pray for spring! 

What has been your proudest accomplishment in the last year or so? Or what’s the biggest lesson you learned in the past year and what advice can you give fellow lawyers about it? 

I have had a tough year with a serious concussion and although I am tantalisingly close to normal now, I think the lesson that I have learned is that if we cannot care for ourselves, we will not be able to care for our clients – and so our health has to come absolutely first.  

What should the profession focus more on? 

I think improving our business systems to support us so that we can have more time and energy available to focus on matters other than the daily grind would be the best start. There are so many things that can be done so that our systems of working take some of the load off of us instead of adding more load on. Everything from state-of-the-art technological solutions to a folded piece of cardboard stuck to the desk with tape (which I used to tip up my mobile phone so that I could unlock it with my face without having to lift it from the desk) can assist us with shouldering the incredible burden that is the lot of all modern lawyers. 

What are the challenges you expect in your practice, and in the business of law in general, going forward? What challenges are particularly pressing in the country’s legal industry? 

To me, it looks like the most pressing challenge for the legal industry in general at the moment is simply loss of staff as the borders open up and so many bright young (and even not so young) staff head for new adventures.  At the same time, everyone I’ve spoken to remains relentlessly overwhelmed with work, which in this scenario is more of a curse than a blessing. 

What are you looking forward to the most in the coming year? 

Acting for more lawyers as my clients – lawyers make the best clients! 

If you were given an opportunity to spend a day with anyone (living or dead), who would it be and why? 

My great-great uncle Edward. In an age and locality where having a windmill made you just about the pinnacle of society, he was travelling the world, thinking deeply about the meaning of life, innovating, making ends meet in all sorts of creative ways, standing up for human life (but so cleverly that it didn’t get him killed) and ultimately surviving to teach and support his whole extended family – a surprising number of whom ended up as clockmakers. 

Originally published at https://www.thelawyermag.com/nz/news/general/probate-applications-specialist-on-lawyers-being-the-best-clients/418278

NZ Lawyer Magazine article - Is a will still valid after divorce?

Jenny Lowe appears as one of the guest experts in this interesting article in NZ Lawyer Magazine originally published at: Is a will still valid after divorce? | NZ Lawyer (thelawyermag.com)

“Contrary to what many may believe, drafting your will is not a set-and-forget exercise. Any decision to enter or dissolve a personal relationship may affect your estate. As such, it is important to keep your will up to date to ensure that your assets are distributed in the way you envisioned.

The decline of traditional marriages in favour of de facto relationships has brought on a change to the probate law landscape. NZ Lawyer hears from three experts on how marriage, de facto relationships, divorce, and separation affect your will. 

Does marriage invalidate a will?

Despite what you may think, in many cases, marriage nullifies a will.

“When a will exists before marriage, once marriage occurs, the will is no longer considered legally valid, unless the will was specifically made ‘in contemplation of the marriage’,” Leesa Speed, family law partner at Holland Beckett Law, tells NZ Lawyer. 

“If the will is not made in contemplation of marriage, this means any gifts or wishes in the will are cancelled upon marriage and the person is treated as having died intestate (without a valid will). The Administration Act 1969 would then determine how the person’s estate is distributed.”

Morrison Kent Lawyers associate Jenny Lowe recalls a recent case wherein an impromptu marriage resulted in a “nasty surprise” for a family following a woman’s death. The woman was terminally ill and had left her estate to her long-term de facto partner, who she married in a gesture of romance prior to her death.

“Unfortunately, this marriage invalidated her will. As it happened, very luckily, the way that her estate was set up meant that [her partner] received almost everything anyway, even though it was now under the laws of intestacy,” Lowe explains. “But…that could easily have gone the other way.”

Does divorce invalidate a will?

Section 19 of the Wills Act 2007 provides for the treatment of a will following divorce.

“When divorce (formally known as dissolution of marriage or civil union) or separation occurs, a will is not automatically void,” Speed tells NZ Lawyer.

“The will is read as if the surviving divorced spouse or civil union partner had died before the deceased divorced spouse or civil union partner even though they are still alive (with limited exception where disposition is in favour of children).”

This means that following divorce, a person’s will remains valid, less any gifts or executor appointments that would have passed to the ex-spouse.

How does separation affect your will?

Unless you have received an official separation order under the Family Proceedings Act, separation will not affect your will.

“If parties have separated but there has been no legal dissolution of the marriage or civil union, then the provisions of the will that relate to the spouse or civil union partner are not automatically void. The provisions of the will remain effective,” Speed explains.

Lowe warns of the effect this arrangement may have on de facto partners who have separated.

“I have had wills where the de facto partners were separated for decades, but the will-maker didn’t update their will, leaving everything to their ex-partner,” Lowe tells NZ Lawyer. “In these cases, there is a limit on what we can do under probate jurisdiction, which is very binary. The only question is whether the ex-partner has the authority, regardless of what happened.”

Further, any assets not accounted for by a will, such as jointly owned property, also remain on foot following separation. 

“It is very important to note that if property is owned as joint tenants (rather than tenants in common in defined shares, for example, half shares) then the property passes directly to the survivor by way of ‘survivorship’ and the deceased person’s interest in it does not form part of their estate,” Speed explains.

“For this reason, it is often advisable to take legal advice about ‘severing the tenancy’ following separation, particularly if there is likely to be a protracted dispute about relationship property division, to avoid the risk of this happening if one spouse/partner dies before the relationship property division has been resolved.”

Can an ex-spouse contest a will?

According to Morrison Kent Lawyers senior associate David Abricossow, a key consideration in whether an ex-spouse can contest a will is whether the parties have divided their relationship property, either under the Property (Relationships) Act or by court order.

“On the death of the spouse or partner, the claimant has to make a formal election whether to take up their entitlements based on a will left by the deceased or make a separate claim under the Property (Relationships) Act,” Abricossow tells NZ Lawyer.

“If there is a separation order or the parties have formally dissolved their marriage, the claimant does not have to make a formal election – they can just apply. If an ex-spouse has rendered services to the deceased prior to their passing and they were promised a share of their estate which has not been reflected in the terms of the will, they may make a claim pursuant to the Law Reform (Testamentary Promises) Act.”

Speed points out that there are other mechanisms by which wills can challenged, “such as where a person believes that the will-maker did not have capacity when they signed the will, or if they were coerced into signing.”

“These sorts of claims are open to an ex-spouse (or any other beneficiary),” she says.

Grounds that the validity of the will can be challenged

Under the Family Protection Act, a will’s validity may be challenged where the deceased person owed a “moral duty” to the claimant. The moral duty gives ethical consideration to the nature of the relationship and the financial need of the claimant. 

“The moral duty owed to a person by a will-maker therefore depends on the nature and duration of their relationship. The fact that a couple has separated is taken into account, along with the size of the estate and other claims on the estate,” Speed says.

In sum, it is important to regularly review and update your will, especially when your personal circumstances change. If in doubt, and to ensure your estate is distributed correctly, it is generally beneficial to seek advice tailored to your situation.”

Originally published at: Is a will still valid after divorce? | NZ Lawyer (thelawyermag.com)

Prickly Probates Series – Probate of a Foreign Will

Prickly Probates Series – Probate of a Foreign Will

Although many people are still avoiding international travel due to the pandemic, in pre-covid times, it was becoming more and more common for people to move around the world and accumulate assets in multiple countries.

It isn’t uncommon for people with investments or assets in various countries to make a will overseas to deal with these assets. This can create interesting complications when the person dies, and probate applications are required.

Hence, we are dedicating this next instalment of the Prickly Probate Series to applications for probate of foreign wills.

Foreign Probates and Reseals

Suppose someone with assets in New Zealand dies and has no will in New Zealand but does have a will from a Commonwealth Country. In that case, the process is reasonably straightforward in that we can apply for our High Court to put their seal on the probate of the will from the other Commonwealth Country. To understand more about a reseal and how assets in multiple countries are dealt with, see our articles here; What is a reseal? — NZ Probates & Reseals (nzprobatesandreseals.com) and Estates with assets around the world — NZ Probates & Reseals (nzprobatesandreseals.com).

Foreign Wills - Probate Application Process

However, when someone with assets in New Zealand dies and has no will in New Zealand, but does have a will from another country that isn’t a Commonwealth Country, the only option to deal with the New Zealand assets is to probate the foreign will here.

An application for probate of a foreign will is similar to a regular application for probate, but it has a few key additions.

• There must be an affidavit from a lawyer in the country where the will was made confirming that the will is valid in the country where it was made;

• There must be a translation of the will if it is not in English;

• There must also be an affidavit from the person who translated the will showing their qualifications and confirming that the translation is an exact copy into English of what is in the will; and

• Although it is not obligatory, proof that probate of the will has been granted to the same person applying here in the country where the will was made is helpful.

It will almost always be critical that the will is valid in the country where it was signed. Occasionally this isn’t the case depending on the citizenship and domicile of the will maker, where the actual signing of the will took place and whether the countries involved are signatories to the international conventions governing the validity of wills. Still, it is best to have a lawyer involved to navigate the complexities correctly.

Case Studies

I recently had a client who made a will to govern his assets located in New Zealand. The way the will was written and signed meant that it would have been valid in New Zealand, but because he was not a New Zealand citizen, was domiciled overseas and actually signed the will overseas in a country where it was not a valid will in the way he signed it, it was invalid in New Zealand as well.

Another complication is that some wills state that they only cover the assets in a particular country, in which case they can only be probated and used in the country whose assets they state that they cover.

I’ve had a case where a client made a will in the United Kingdom, which said it only covered her assets situated in the United Kingdom. She intended to make another will to cover her New Zealand assets, but she died before completing the New Zealand will. In that case, even though we had a perfectly valid will and probate in the United Kingdom (which we would otherwise have been able to reseal), we could not use it here, and she was treated as being intestate (i.e. having no will) in relation to her New Zealand estate.

Prickly Probates

There are so many twists and turns in these types of applications which we will cover in future articles on further aspects, but suffice to say that probating a foreign will in New Zealand is a classic case of a Prickly Probate.

For More Information

If you are acting for an estate that has assets in New Zealand, but the only will is from another country, we would be happy to help. We make these applications often and streamline this complex process to make it easy for you. Even if you are a lawyer yourself, it can be worthwhile to entrust the probate application to a specialist and save you the time upskilling for an application you will very rarely be obliged to make.

For more information or assistance from our probates specialist, please send Jenny Lowe an email at jenny.lowe@nzprobatesandreseals.com.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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Your Wedding Day and its Effect on your Estate

Your Wedding Day and its Effect on your Estate

Are you aware of what happens to your will when you get married? Are you sure about what happens to your will if a marriage ends in divorce? As with so many things in the law surrounding grants of probate, the answers will surprise you.

In fact, we are finding that more often than not, it is not the person themselves who finds out the answers. The truth usually is discovered by the grieving family of a person who has died when they come to apply for probate of the will, and it is often an unpleasant surprise at an already difficult time. 

The short answers are:

• Marriage cancels a will; and

• Divorce does not.

Which really does seem to be entirely backwards to what common sense would dictate.

Marriage cancels a will

W.e recently had an unfortunate case where a client and her de facto partner had been together for many decades. She made a will leaving almost her entire estate to her de facto partner many years before she died. However, as she became ill leading up to her death, they decided, as a romantic gesture, to get married and did so to the delight of their friends and family, never dreaming it would have any effect on their already carefully prepared legal paperwork.

The lawyers found out she had been married only after she died when the family prepared to apply for probate. Even though she had married the person who was in the will, the will was automatically cancelled, and the court treated her as having no will at all.

Thankfully, because of the setup of their assets and the size of her estate, the rules governing people without wills meant that almost the exact same division of assets occurred as would have occurred in the will, but that won’t always be the case. In many cases, the effect of the rules governing people without wills may be very different from what the person decided in their will.

You can avoid this issue by inserting a clause in the will that says specifically that you are expecting to get married to a particular person and that this shouldn’t cancel the will if it does happen. Still, even wills made by lawyers who carefully consider your situation won’t generally include this unless you specifically discuss your plans to marry in the near future.

The best solution is to update your will on a regular basis, especially as your circumstances change, and to discuss regularly with your lawyer what your upcoming plans are and what your wishes are so that the lawyer can make sure your will caters for all likely eventualities.

Divorce does not cancel a will

Given that many wills leave the entire estate or a large part of it to a marriage partner, separating or divorcing that partner would seem a sensible time for a will to be cancelled. However, neither separation nor actual divorce cancels a will.

They do, however, have an effect on the will under some circumstances. If, for example, the couple have an order from the court formally dissolving their marriage, then the will is read as if the divorced partner died before the deceased partner (even though they are in fact still alive, just divorced) in the places where the divorced partner is appointed a trustee or given a gift under the will. 

This at least means the divorced partner doesn’t receive their gifts and aren’t put in charge of running the estate, but often leaves awkward holes in the will if there isn’t a backup provision in the document.

It also only works with the correct paperwork in place; we have seen many difficult cases where a couple has been separated, sometimes for decades, but never formally divorced. The will was also never updated. So the divorced partner is still entitled to everything the will leaves to them.

Civil Unions

Civil unions follow exactly the same rules as marriages.

De facto relationships

Entry in and out of de facto relationships does not affect the will’s validity whatsoever. That can often create very unsatisfactory results, especially when wills are not updated over a long time.

Conclusion

 Other laws (particularly those surrounding property and relationships) assist with this situation. In cases where wills are accidentally cancelled, the outcome is at least somewhat more in line with what we would expect. Still, they often aren’t exactly what the deceased wished and come at the cost of extra time, stress and legal fees that are unwelcome, to say the least.

Families can also sign documentation to agree to do things differently in an estate. Some family members sometimes sign away their interests, but this relies on people’s sense of moral obligations and only works if everyone agrees and is willing to sign the documentation.

As with so many rules in the world of probates, these rules were put in place often a hundred or several hundred years ago when the situation in society was very different. In the case of marriage, it almost always occurred at the very beginning of a relationship, at least in terms of financial interdependence, whereas nowadays, that is rarely the case. Divorce was so rare that the lawmakers didn’t even feel it needed to be mentioned. Although a lot has changed in our society since those days, not an enormous amount has changed in probate law.

Whenever your relationship status changes or is due to change, spare a thought for your probate application and see your lawyer, who can guide you through the surprising byways that you must traverse; your family will thank you for it. 

For more information

 If you find yourself faced with one of these awful surprises after a loved one has died, we can unravel the confusion and re-build the last wishes in the will as best as is possible to do; contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseals, probate and letters of administration applications.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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How long will it take to unlock estate assets?

How long will it take to unlock estate assets? – A timeline for probates, letters of administration, and reseals

A common complaint we hear is how long it takes for people to receive their inheritance once a friend or family member has died.  

Being remembered in someone’s will is often a bittersweet surprise. But, once you have waited for over a year or more to receive that gift, the experience can begin to feel sour. 

Dealing with an estate from start to finish can vary greatly, and how long it takes depends on how complex the estate is and how many people need to be involved (and how many questions they each might have). Yet, any estate that has assets worth over $15,000 will have probate as part of its process, and it is worth knowing about that probate process as it can take some time.

When someone dies, all of the organisations which hold the assets (such as banks, insurance companies and Land Information New Zealand) lock those assets. A grant of probate is the document that unlocks those assets and allows the executor of the will to access them to complete the administration of the estate by following the instructions in the will.

When the person who died had a will, the application is called a grant of probate – when they did not have a will, it is called a grant of Letters of Administration. When one of these has been granted in a Commonwealth country and needs to be approved by our court for use on assets in New Zealand, it is called a Reseal. 

You are required to make all of these applications to the High Court of New Zealand. It usually takes between 4 to 6 weeks from when the application is put into the court to receive a grant. Sometimes the court can be quite a bit quicker than this (at the moment, for example, they are processing most of these applications in roughly four weeks). Still, we always like to encourage our clients to expect the worst and then, if it is faster, they are in a better position.

If an application is urgent (for example, one of the people entitled to money from the estate is struggling financially or if the estate owns a house that has a hole in the roof which needs estate money to protect and repair the home), the court can be convinced to make an urgent grant if you explain to them why it is required. An urgent grant takes only between 1 to 2 weeks.

The real differences in timing come not from the court process itself but from preparing the application and collecting all of the evidence needed for the court to make the grant.

Grant of Probate

The Courts make a grant of probate when there is a will, so it is reasonably easy to discern who the executors are because they are listed in the will.

Lawyers must prepare an application for the estate, which includes an affidavit from the executors to confirm specific details to the court, such as:

• The deceased person really has died.

• The will they are producing is the most recent will that the deceased made

• they really are the executors listed in the will and,

• They promise the court that they will carry out the wishes stipulated in the will.

All executors have to sign this affidavit, and their signatures must be witnessed by a lawyer, Notary Public or a Justice of the Peace.

The original will must also be in the presence of the executors when they sign their affidavits. The necessity for original documents to go back and forth can often add a lot of time. Specifically, when waiting on the post, if the executors don’t live close to the lawyer for the estate. If they do live close by, they can pop into the lawyer’s office to sign, and nothing has to go by post. 

Occasionally, the original documents can get lost in the post, and then a completely different application has to be carried out. 

We always recommend sending original documents with tracked services to avoid this problem where possible.

Letters of Administration

This application has all the same issues as a grant of probate in terms of timing, but with the added complication of needing to choose who the executors are because there is no Will that determines this. Executors under letters of administration are called “administrators”, but the role is almost identical.

Essentially, how the administrators are chosen depends on what family members of the deceased person are alive at the time of their death. The government have a prescribed list for who receives what from the estate. Whoever is entitled to the largest part of the estate in the list is designated the estate administrator. 

The tricky part is that you have to prove, one by one, that the various classes of relatives are not alive or in existence to narrow it down to the relatives who are entitled to the largest portion of the estate. If one relative is entitled to the largest portion, they are allowed to be the administrator. If there is more than one relative who receives the same portion, the relative who applies to be the administrator also has to have consents signed by all the other relatives who are entitled to the same portion of the estate as they are.

This adds another whole dimension of complication in making searches of government registries, finding the people who need consent, convincing them to sign consents, and for the original documents to all be created, signed, and posted back to the estate lawyer.

Reseal

A reseal is the easiest of the three applications. The hard work for the grant of probate or letters of administration has already been completed in another country. 

The executors or the administrators don’t have to sign anything for the application for a reseal – this is taken care of by the lawyer making the application. The only original document that needs to be posted is the probate or letters of the administration itself (although this posting time is often quite long because it is always crossing borders).

However, reseals are not typical applications for most lawyers to make, so we recommend using specialists who often do them. Otherwise, this process can be lengthy for an inexperienced lawyer who needs to up-skill themselves to make the application. 

CONCLUSION

Overall, the application for probate, letters of administration, or reseal is only a part of a long process that can often take 12 months or more from the date that someone died to finish all the jobs in their estate and pay the money the people are entitled to inherit.

However, it often represents a reasonable chunk of that time, and the executors or administrators can do little or nothing with the estate assets until this is granted. Usually, executors and administrators are also required to hold the estate assets and not distribute them to anyone for six months from the date of grant of probate or letters of administration. This timing is a key part of the overall timing of any sizeable estate.

FOR MORE INFORMATION

If you are dealing with an estate where a reseal, probate or letters of administration are required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseals, probate and letters of administration applications, especially for an international estate with assets in New Zealand. We can make these complex applications simple and painless for you.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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United Kingdom reseals

The United Kingdom reseals

Travel and living arrangements between New Zealand and the United Kingdom have become more popular over the years (we lawyers are a part of that statistic, particularly prone to spending time in the United Kingdom working early in our careers). As a result, there are many people with assets in both New Zealand and the United Kingdom.

That means, whichever country you choose to make your home, your assets in the other country require extra administration when you die. Because both New Zealand and the United Kingdom are commonwealth countries, probate for a deceased estate (or letters of administration if the estate didn’t have a valid will) from one country can be resealed in the other. As a commonwealth country, the process is faster and more streamlined than applying for probate in both countries.

If you are dealing with an estate in the United Kingdom with assets in New Zealand, we are experts at resealing United Kingdom probates here in New Zealand. Because we routinely undertake work between the two countries, we also have contacts in the United Kingdom who can assist you with the same questions in the other direction if need be.

WHAT IS A RESEAL?

A reseal is as simple as it sounds. 

When probate or letters of administration are granted, the court which makes that grant “seals” the document by placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal turns the document into a valid grant that can be used to unlock the estate assets.  Without it, all you have is a piece of paper that organisations won’t accept to unlock estate assets.

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it.  That transforms the document into a grant of probate that is only valid in the United Kingdom, for example, to a grant of probate that is valid in both the United Kingdom and New Zealand. 

If you were to present the original grant of probate from the United Kingdom to the bank in New Zealand, they would not accept it and refuse to release the assets.  If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have the New Zealand High Court’s seal on it.

COMMON ISSUES WITH A UNITED KINGDOM RESEAL

We are experiencing a common issue at the moment with UK probates, where the will is not attached, especially given parts of the United Kingdom have recently updated their probate process so that the will is not required to be attached to the probate.

Although this type of probate is perfectly valid within the United Kingdom, it is not enough for our Court in New Zealand to grant a reseal.

For letters of administration, which are granted when there is no will, nothing needs to be attached to the letters of administration for us to arrange a reseal. 

However, with the probate, the will needs to be attached to the probate by the court (for our court to grant a reseal). 

What the court will require if:

• There is no will attached to the probate, but the court supplied a copy of the will: Confirmation from the court that issued the probate that the will supplied is indeed the deceased’s last will. The confirmation must come from the issuing Court, not from the solicitors that acted to receive it.

• There is no will attached to the probate, and the Court did not supply a copy of the will: A copy of the will produced in a way that our court can be confident that it is the will associated with the probate. For example, it has a cover letter from the court or has been certified by a court officer.

Between the multiple lockdowns and the London Registry closing last year, receiving a copy of the will has been taking a longer time than usual – we have one particular file where we have been waiting for a copy of the will for seven months!

Accordingly, if you are dealing with an estate with assets in New Zealand and applying for probate in the United Kingdom, it might be wise to request a copy of the will in one of the manners above at the same time you apply for probate. Having this copy ready to go will ensure you are all prepared for the reseal process.

FOR MORE INFORMATION

If you are dealing with an estate where a reseal is required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseal, probate and letters of administration applications, especially for an international estate with assets in New Zealand. We can make these complex applications simple and painless for you.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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The importance of storing your will with your lawyer

Applying for probate of a will is often more complex than expected. An issue that comes up in our applications, time and time again, is where something has happened to the will while it was the care of the person who has died.

Because a will is the last wishes of someone who can no longer express any wishes at the time of probate, the court is very particular about making sure that the will probated is in every way correct.

THE PRESUMPTION OF DESTRUCTION ANIMO REVOCANDI

For example, suppose an original will is lost, and only a copy can be found. In that case, the court can grant probate of the copy, but only if they can be absolutely sure that the original has not been destroyed by the deceased before they died. This is where the court applies the presumption of destruction amino revocandi. 

A presumption is something that the court will assume unless you can prove to them otherwise. 

In this case, the presumption is that if the last place that the original will was known to be was in the possession of the person who wrote it, and after their death the original will cannot be found, then the court presumes that the person who wrote the will destroyed the will with the intention to revoke it unless it can be proved that this is not the case.

It is quite difficult to prove that the person who wrote the will did not destroy the will in order to revoke it once they have died.  Some examples of situations where it was successfully proved that the deceased did not destroy the will were cases where the deceased had talked to friends and family to say they were happy with what their current will contained soon before their death or cases where the deceased’s house burned down (or a similar accidental destructive event occurred), but there was proof that the original will was safely in their papers before the fire.

If you leave your original will with your lawyers for safekeeping in their deeds system, however, the court makes no such presumption. Also, lawyers’ deeds systems are usually very well organised and very carefully administered to ensure that wills can always be found and sometimes they are even housed in fireproof rooms just in case. Even if the lawyers were to lose or accidentally destroy the original will, they generally have good enough systems in place to ensure that they can still convince the court that the copy they have is the correct original so that they can receive a grant of probate of a copy of that will.

If you’re interested in reading more about probate of a copy of the lost will, you can read my article dedicated to that subject here.

THE PAGES OF THE WILL

The court also wants to ensure that all pages of the will are the correct pages. Assuming the court did not check the pages carefully, one can imagine how it would be easy for some unscrupulous beneficiary to remove a page of the will or add a page to the will to benefit themselves.

Accordingly, the court checks all original wills submitted to them for probate to ensure that all of the pages are as they should be. If they are not, the court requires an extra affidavit in the probate application called an affidavit of plight.

There are two main issues that come up with pages at the time of probate. These relate to a will where:

• the pages have not been attached together; or

• it appears that some other document has been attached to it in the past.

Where the pages have not been attached together

If a will is presented for probate with the pages not attached together in any permanent way (such as a staple, ribbon or a brass pin), the court needs to be reassured that all the pages of the will are present.

We recently had a client who made their own will and put it in a safe in their house, but they never stapled the pages together. When they died, one of their children opened the safe and removed the will and gave it to another of their children who took it to the lawyer to apply for probate.

The court insisted that every person who handled the will since it came out of the safe had to make an affidavit to confirm all pages were present while the will was in their care. Both children and the law firm had to make an affidavit of plight, and each one of them had to have the original will in their possession to make that affidavit, which added a lot of extra time, cost and effort to the application.

Where it appears that some other document has been attached to the Will in the past

If the will shows marks on the pages that suggest that another document was attached to it at some stage in the past (even if the will itself is securely and correctly held together), the court needs to be reassured that no other document in the nature of a will was attached to the will when these marks appeared.  This same situation will happen if the will had been stapled together, the staple was removed and a new staple was put in.

The marks on the paper can be made by the original staple which was removed, by a bulldog clip or a sliding clip indenting the front and back pages, or even by a paperclip making its distinctive imprint on the front page. When the court receives the application for probate, they run their eyes and their fingers over the original document to check for these imprints or imperfections. The court will insist upon an affidavit of plight if they are at all concerned.

We are currently making a probate application for a client where the original will has the imprint of a bulldog clip on the top. The client stored the will at home, and when the family found the will and sent it to the lawyers there are was no bulldog clip attached. The court will insist on an affidavit from the person who removed the clip so that person can reassure the court that there was no other document in the nature of a will attached at that time. In this case the person who removed the clip (and probably the person put it there in the first place) is deceased.As with the issue of losing the will discussed above, if you store the will at a law firm, it is less likely to encounter these two problems; legal staff are trained on how to treat the original documents. If either of these problems do occur, law firms also have systems in place to ensure that the person who needs to prove something to the court is available (or evidence as to usual office procedure can be used if that person is not available) and the extra proof can therefore be provided with relative ease.

For clients

If you have any questions about storing your will (or indeed you would like us to store your will for you – a service we provide for free) or if you are dealing with an estate where the will has one of these issues, give us a call. We specialise in probate applications, and we will do everything we can to make the process as smooth as possible for your grieving family instead of landing them with further complications at a difficult time.

For other lawyers

If you are a lawyer struggling with one of these applications for a client, you might consider using us to complete the application for you. We run a service for other lawyers preparing these applications on your behalf.  Because we do so many of them, we can complete them faster (and usually cheaper) than you can, and it saves you the unchargeable time coming up to speed with a tricky application which you will not need to make often. Your client need not know we exist – they receive an efficient and painless grant and attribute that success to you!

FOR MORE INFORMATION

For more information, please contact Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. Please contact Jenny Lowe by email at jenny.lowe@morrisonkent.com

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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Australian reseals

Australian reseals

Since trans-Tasman travel and living arrangements have become so common in recent years, more and more people are finding that, when a loved one dies, some of their assets are "over the ditch". That means that the grant of probate or grant of letters of administration they received in the country where the deceased lived needs to be resealed in order to access the assets in the other country.

If you are dealing with an estate in Australia which has assets in New Zealand, we are experts at resealing that Australian probate here in New Zealand.

What is a reseal?

A reseal is as simple as it sounds. 

When probate or letters of administration are granted, the court which makes that grant “seals” the document but placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal is what turns the document into a valid grant that can be used to unlock the assets of the estate.  Without it, all you have is a piece of paper which won’t be accepted by organisations to unlock estate assets.

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it. That transforms the document into a grant of probate that is only valid in Australia, for example, to a grant of probate that is valid in both Australia and New Zealand. 

If you were to present the original grant of probate from Australia to the bank in New Zealand, they would not accept it and refuse to release the assets. If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have the seal of the New Zealand High Court on it.

Reseal - common issues

Each state in Australia produces a slightly different probate document and have their own procedures. The state of Victoria has even introduced a revolutionary system to file an application for probate electronically, but these differences can cause problems for reseals.

A common issue we are experiencing at the moment is probates where the will is not attached, especially with probates from Australia.

Letters of administration are granted when there is no will, so nothing needs to be attached to the grant of letters of administration for us to arrange a reseal. 

However, with a grant of probate, the will needs to be attached to the probate by the court which issued the probate (it doesn't work if a copy of the will is attached to the probate by anyone other than the court which granted it[SB1] [GU2] ) in order for our court to grant a reseal. 

This has generated some issues when other courts change their process so that the probate they produce does not have the will attached.

We have also recently had a client whose lawyers in Australia obtained probate, and the will was attached, but the lawyers decided the document was too bulky and removed the will and sent us only the first page of probate.

What the court will require if:

• There is no will attached to the probate, but the court supplied a copy of the will:

confirmation from the court that issued the probate that the will supplied is indeed the last will of the deceased. The confirmation must come from the issuing court, not from the solicitors that acted to receive it. 

• There is no will attached to the probate, and the Court did not supply a copy of the will:

a copy of the will produced in a way that our court can be confident that it is the will associated with the probate, for example, it has a cover letter from the court that issued the probate or has been certified by a court officer.

For more information

If you are dealing with an estate where a reseal is required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, especially those coming from overseas. We can make these complex applications simple and painless for you.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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What is the difference between an executor and an administrator of an estate?

What is the difference between an executor and an administrator of an estate?

If you have read any of my articles on probates and letters of administration or indeed any documents describing them, you may have noticed that there are two important people who are mentioned often: the “executor” and the “administrator”.

You may have also noticed that these two people seem to fill the same role; both the executor and the administrator are in charge of administering the estate of a deceased person.

You may at this stage (and you are not alone!) wonder why it is necessary to have these confusing terms, but there is some interesting historical rhyme and reason behind their use.

The role of administrator

As the name implies, an administrator is the person (or people) who administers an estate.

An administrator is most commonly appointed when the person who has died did not leave a will. When this happens, it means that the person was not able to legally make their wishes known as to who they would like to administer their estate and so rules that are set out in legislation apply to decide who should be the administrator.

Sometimes, however, an administrator is appointed when the person who has died did appoint someone as an executor in their will, but that appointed person is either unable or unwilling to administer the estate.

The role of executor

A simple way of looking at the difference between these two terms is that an executor is a type of administrator; they are the type of administrator that has been chosen specifically by the deceased person by being chosen in that deceased person’s will.  The court even calls them an administrator in some contexts just to confuse the enemy!

It is important from the law’s point of view that the role of executor is distinguished from the role of administrator because there are some special rules attached to people who are executors.

For example, there is a rule called “chain of representation” which means that if a deceased person has appointed an executor, but that executor has died before administration of the deceased person’s estate has been completed (or sometimes it hasn’t yet been started), the executor of the estate of the deceased executor can step into the deceased executor’s role and complete administration of the estate of the deceased person.

This cannot happen with administrators - instead, the rules set out in legislation apply to choose who is appointed as a replacement.

For more information

If you are unlucky enough to have been unexpectedly thrust into the complex and archaic world of estate administration, our probate expert Jenny Lowe is here to help. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand.

Please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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Who is entitled to be the administrator of an estate?

Who is entitled to be the administrator of an estate?

In our recent article about applications for letters of administration de bonis non (which you can read here), we talked about who is entitled to apply to run the estate.  Letters of administration de bonis non is quite a complex application and our article wasn't able to go into extreme detail on any one part of it – otherwise, it would have probably been too long! However, it occurred to me that it is a valid question (that we often receive) to ask who is entitled to apply to run the estate where the person who has died has not appointed anyone to do so (or the people who have been appointed cannot or will not perform their role).

When the person appointed to run the estate has been appointed in a will, they are called the executor, and when they have been appointed where there was no will, they are called the administrator.  For a handy comparison between probate (where you have an executor) and letters of administration (where you have an administrator), see our article on that subject here.

There are many situations where this issue comes up, such as:

• letters of administration de bonis non where something has happened to the people who were appointed part way through their administration of the estate so they can no longer fulfil their roles;

• simple letters of administration where the person who has died never wrote a valid will; and

• letters of administration with will annexed where the person who has died did write a valid will, but all of the executors under that will have died, lost mental capacity or are unwilling to take up the role of executor.

There are two main situations to deal with:

• where there is a will (but for some reason none of the people listed in the will are willing or able to apply for probate and become the executors); and

• where this isn’t a will.

When there is a will

When there is a will, there are two main options:

• chain of representation; and

• the beneficial interest in the estate.

Chain of representation

The first and best option is that, if the executor appointed in the will has died and that executor who has died has appointed their own executor for their estate, their executor can act in the shoes of the executor who has died to administer this estate.

This is called the chain of representation.

This only works when the executor who has died made a will to appoint their executor and that executor becomes the executor by successfully applying for probate.  If the executor who has died did not have a will or there was no one willing or able to apply for probate, then “the chain of representation is broken” so to speak, and this option cannot be used.

Beneficial interest in the estate

When the chain of representation does not apply, the court prefers to allow the people who are entitled to most of the assets of the estate to run the estate. 

This is quite an understandable principle in that the people who are entitled to receive the bulk of the estate are likely to be the best people to run the estate because they have their own interests at heart.

When there is a will, then the will sets out who receives what in the estate, and this is simple to work out.

When there isn’t a will

When there isn't a will, chain of representation cannot be used, so the question goes straight to who has the most beneficial interest in the estate.

When someone has not written a will, the government has essentially written a will for them in a piece of legislation called the Administration Act and this has a list of who receives what which starts at the top with the spouse or de facto partner and children and goes all the way down to nieces and nephews, grandparents and cousins if there is nobody else.

Working through this list, one can find out who has the largest beneficial entitlements to the assets of the estate.

The court's discretion

Unless there is a will where the person who has died has appointed people to be their executors, there is no absolute right to become the administrator and the court has the discretion to decide what is in the best interests of the estate.

If two or more people have the same entitlement to the assets of the estate (or someone wishes to apply where there are people with a bigger entitlement than they have), then whichever of them wish to apply to become the administrators of the estate will need the consent of the people with a greater or the same entitlement as they do.

A situation where this court discretion is most often needed is when more than one person wants to apply as above, and they cannot agree who should apply.  It is then up to the court to decide who it considers to be the best administrator in the interests of the estate.

The court has some basic rules that it follows in making that decision:

• lineal descendants are preferred to lineal ancestors;

• relatives who are related fully by blood are preferred to relatives who are only half – blood;

• the interests of the majority are preferred to the interests of the minority;

• a sole administrator is preferred to more than one administrator (because the administrators must always act with each other and agree with each other and in this situation, they already don't agree, so asking them to work together is unlikely to work out well);

• someone who is a person of business is preferred to someone who has no skills in business (because a lot of estate administration has parallels to the business world);

• the party who applies first is favoured; and

• an older administrator is preferred to a young one provided the choice is not against the interests of the majority.

When an estate is struggling with debts, the administration can even be granted to a creditor in some circumstances.

In the end, the court will appoint whoever the court feels will do the best job in administering the estate.

For more information

If you are struggling with working out who should run an estate in a scenario like those described above, please get in touch with our probate specialist Jenny Lowe.

If you are a lawyer struggling with these complex probate matters, (first of all, you have my sympathy because I know your pain!) you might like to consider instructing us to assist with the application. 

We run a service for other lawyers, preparing these applications on your behalf.  Because we do so many of them (and are within walking distance of the High Court probate unit), we can complete them faster (and usually cheaper) than you can. We will save you the unchargeable time coming up to speed with a tricky application which you will not need to make often. Your client need not even know we exist; they can receive an efficient and painless grant and attribute that success to you.

We are also happy to just point you in the right direction and you can complete the application yourself.

For more information, please get in touch with Jenny Lowe on jenny.lowe@nzprobatesandreseals.com.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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Prickly Probates series – De bonis non

Prickly Probates series – De bonis non – what does it mean and what does it do?

A partner at a small law firm once told me a lovely story about approaching a colleague of hers with a difficult probate application.  She explained to her colleague the situation and the colleague said to her that an application de bonis non would be required.  As these applications are rare and estates were not part of this partner's expertise, she asked her colleague what that meant. 

The colleague was apparently shocked and rebuked the partner saying: "I can't believe you don't know what de bonis non means!" The partner was embarrassed for a moment until she thought to ask: "do you know what it means?" to which the answer was "no".

While the name sounds thoroughly perplexing, an application de bonis non is just another species of Prickly Probate and one which I intend to demystify (at least in a general way) in this article.

What does it mean?

De bonis non is a Latin legal phrase, and essentially it just means "goods not administered".  What that means in practice is that an executor (or an administrator, but we'll use an executor as the example for this article) has been appointed as executor to an estate and that executor has failed to complete the administration of the estate.

If the difference between executors and administrators is evading you, have a look at our handy comparison of probate and letters of administration article here which explains the difference.

Administration of the estate in this context just means the executor completing their duties such as:

• arranging the funeral and burial/cremation for the deceased person;

• finding all the estate assets;

• bringing them all together;

• paying the estate debts; and

• paying the balance to the beneficiaries.

I have seen an estate fail to be fully administered for a number of reasons:

• an elderly surviving spouse being appointed as executor who then dies of old age;

• an executor dying of an unexpected disease or accident;

• an executor losing mental capacity for some reason;

• the administration taking so long and being so complicated that the executor loses motivation and refuses to continue; and

• my favourite example was a family of Americans living in a wild area of the country where the father appointed his only son based on (according to his daughter) an old-fashioned belief that sons were better to appoint than daughters.  However, as it turned out, the son was far more interested in hunting deer (and shooting the occasional bear) and absolutely detested paperwork, so he completed only a part of the administration before giving his permission for his (very well-organised) sister to complete the rest.

What does it do?

Essentially this type of application appoints someone new to administer the rest of the estate when part of it (for whatever reason above) has been left unadministered and there is no way to force the original executor to administer the balance.

There are two main de bonis non applications that can be made:

• Letters of Administration with Will Annexed De Bonis Non: for of the situation where there is a will; and

• Letters of Administration De Bonis Non: for of the situation where there isn't a will.

You might be wondering now where the application for probate is in all of this.  I haven't forgotten it; probate can only be granted to one or more of the executors named the will.  An application de bonis non will only ever be necessary because all of the executors in the will are either dead, unable or unwilling to administer the estate any further, so probate is never an option with an application de bonis non.  If there is a will, it gets included in being the "with will annexed" in Letters of Administration with Will Annexed De Bonis Non.

Letters of Administration with Will Annexed is another prickly application where there is a will, but there is no executor willing or able to act and I plan to write an entire article on that subject another time. 

Who can apply?

Working out who is the best person to apply for this grant is quite a complex question based on centuries of cases where the court worked out what was most just under the circumstances

However, it can be reduced down to two general rules:

• the court's preference is something called the chain of representation; and

• if the chain of representation has been broken, the court prefers in cases like this (in fact, in all cases other than those where there is a chain of representation) the people who have the greatest interest in the estate (i.e. people who are entitled to receive the most assets of the estate) to run the estate.

What is this chain of representation?  Simply put, it is an unbroken chain of wills appointing executors who then successfully apply for probate.  The court looks at things in terms of the wishes of the will-maker.  If the will-maker (let's call him Bob) appointed someone to be his executor (let's call him Joe), Bob must have liked and trusted Joe.  If Joe dies part-way through completing his duties as the executor of Bob's estate then the person who Joe appointed as his executor (let's call him Frank) must have been liked and trusted by Joe (who was, in turn, liked and trusted by Bob).  Accordingly, Frank can stand in the shoes of Joe and administer the rest of Bob's estate.

This is why the chain of representation cannot be used (and is broken if it is in place) if any of the links are letters of administration and not probate. The administrator appointed under letters of administration is not the will-maker's choice because there is no will setting out that choice.

Accordingly, the chain of representation is broken if:

• someone dies without a will and letters of administration is required; or

• someone dies with a will but none of the executors appointed under that will are willing or able to apply for probate and become the executor.

For more information

This particular application is so prickly that I am tempted to write another article about it at a later time.  There are still many interesting twists and turns that I have not covered. For my contacts on LinkedIn, let me know if you're interested in some more de bonis non by replying to this post.

If you are a family member struggling with the fact that an estate has only been partially administered, get in touch.  We can not only let you know all your options and help you choose the best one, but we have the expertise to make this application if it is needed so that the estate gets sorted out in a timely manner and you don't miss out on your inheritance any longer.

If you are a lawyer struggling with one of these applications (first of all, you have my sympathy because I know your pain!) and you might like to consider instructing us to make this application for you.  We run a service for other lawyers preparing these applications on your behalf.  Because we do so many of them (and are within walking distance of the High Court probate unit), we can complete them faster (and usually cheaper) then you can and it saves you the unchargeable time coming up to speed with a tricky application which you will not need to make often. Your client need not even know we exist, they just receive an efficient and painless grant and attribute that success to you.

For more information, please contact Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate, reseals and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. You can contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

Read more articles