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.