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.