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.