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.

Read more articles

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.

Read more articles

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.

Read more articles

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

How to find a Will for probate

In our last article in our Prickly Probates series, we talked about how to make probate application when the original will has been lost.  A question we get often is, if someone has died and you suspect there is a will but can't find it (or you have no idea whether there is a will or not), how do you find the will?  You can't get very far applying for probate unless the will (or at least a copy) has been found, so we felt this warranted an article of its own.

The papers of the deceased

The first step is to go carefully through the papers of the deceased.  Usually, when someone makes a will, the lawyers give a copy (or sometimes the original) to that person to keep with their important papers. 

If you find a copy of a will amongst these papers, it will usually have the name of the firm that created the will printed somewhere on the will itself (often on the covering page) which allows you to get in touch with that firm to see if they are holding the original.

Wills held by law firms

If a search through the papers of the deceased turns up nothing, then the next step is to see if any law firms are holding the will.

Unfortunately, there is no register of wills in New Zealand as there is in some other countries so there is no easy way to find a record of all the wills in New Zealand all in one place.  Instead, wills are usually kept by the lawyers who made them (or, if the deceased had moved on to using new lawyers, the will and other important papers are typically moved on to the new lawyers with them).  If a law firm ceases to exist, it always hands its wills safely to another (usually local) law firm so that they are never lost.

In many law firms, there is a member of staff who looks through the death notices in the newspaper every morning and checks to see if the firm is holding a will for any of those people.  If the firm is holding a will, they contact the family of the deceased, so sometimes a search for the will by the family is not necessary at all.

The easiest way to find out which lawyers might be holding the will is if you find other documentation from lawyers in the papers of the deceased (or you know the deceased dealt with a certain firm of lawyers), to contact those lawyers first and see if they are holding a copy of the will and, if not, if they know what lawyers the deceased went to after them so that you can ask those lawyers.

Lawyers usually have very good systems in place, especially for wills, to ensure that they have a record of what they are holding and also a record of where those documents went after they left.

If the deceased lived in a smaller town, sometimes contacting all the lawyers in that town (as in smaller towns there are often only a few firms) is the easiest way to determine who the lawyers for the deceased were.  People do not always necessarily use lawyers in their town, but often they do so it is a good start.

If you can't find the law firm that is holding the will in any of the above methods, the next step is to place an advertisement in a newsletter for lawyers that goes to all of the lawyers in a certain area (or often it is more efficient to place the advertisement in the newsletter that goes to all lawyers in New Zealand). The advertisement gives the name and date of death of the deceased and contact details for any firm which is holding a will to contact.  In each firm, there is a member of staff who goes through these lists each week and checks to see if that firm is holding any of the wills that are being searched in this manner.

If no will can be found

If all of these methods above have been tried and no will has been found, then most likely an application for probate won't be possible and you will instead make an application for letters of administration (which is a very similar application but in a case where there is no will).  For a handy comparison of probate and letters of administration, see our article here.

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@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

Prickly Probates Series – Lost Wills

Prickly Probates Series – Lost Wills

This is the second installment in our Prickly Probates series and in this article we look at the issues that arise when a will is lost and the options available to apply for probate nonetheless.

There are many different ways that an original will can be lost:

• the person who wrote the will can hold the original will and lose it themselves;

• sometimes when the person who wrote the will is holding the original and their living accommodation becomes disorganised before they die, the original will can be lost simply because the family of the deceased person fail to find it in their possessions following their death;

• sometimes, when lawyers apply for probate (which requires posting the original will to the High Court), the letter is lost in the post (we walk all our probate applications to the court in person to ensure that this never happens!); or

• occasionally, the original gets lost at the lawyer’s office where they have been holding it (although this is rare because usually, lawyers have a very disciplined deeds system in place).

Whichever way the will becomes lost, the High Court cannot produce probate in the usual way unless the original will is produced to them, so you have a Prickly Probate Problem.

If the original will has been lost and no copy of it can be found after a thorough search, then an application for probate cannot be made and the correct application to make would be an application for letters of administration (which does very much the same thing as probate but covers the situation where there is no will).

Oftentimes, however, the reason that you know the will is lost is because you have a copy (or sometimes a draft of it), but you cannot find the original.  If this is the case, it is sometimes possible to make an application for probate of the lost will in which the court accepts the copy of the will as if it were the original.

PROBATE OF A LOST WILL – DIFFERENCES FROM A NORMAL PROBATE APPLICATION

The main differences with an application for probate of a lost will are:

• that probate is granted on the copy of the will (not the original);

• that the grant of probate is limited until a more authentic copy (or indeed the original, if it ever turns up) is used to apply for probate;

• for all probate applications, the executor of the will is required to sign an affidavit for the court, but in these applications, there also needs to be a second affidavit from someone supporting the application.

The second affidavit supporting the application and what it needs to include shows the heart of the differences in this type of application.  There are a number of extra facts that need to be proved to the court before they will grant the probate:

• that the original will existed;

• that it was signed correctly so as to be a valid will in New Zealand;

• that it was not revoked;

• that it was accidentally lost or destroyed; and

• that the contents of that original will are contained in the copy (or draft).

In some circumstances, these extra facts are quite easy to prove. 

If, for example, the will was held with the lawyers of the deceased and they made a probate application, but the original will got lost in the post on its way to the High Court, then the lawyers for the deceased can sign an affidavit explaining what has happened and attaching the copy of the will which they took from their file.  In that situation, it is clear that the original will existed (the lawyers will swear to this in their affidavit as they saw it) and that it was signed correctly, not revoked and accidentally lost in the post.  Lawyers almost always take a copy of a will for their file, so they can swear in their affidavit with confidence that the copy on their file represents the contents of the original will that was lost.  This fact scenario represents one of the most simple versions of this application.

In other circumstances, proving all the facts that the court will need is more difficult.

An example of this is the case where the lawyers cannot find the original signed will in their deeds system and they only have a draft of the will (not a copy of the signed original) in their file.  Unless somebody at the firm can remember signing the will with the client and placing the fully signed will into the deeds system and the deeds records show that the will was not taken out of the deeds system and given to the person who made the will, then it is not possible to prove everything that the court needs to know.

THE PRESUMPTION OF DESTRUCTION ANIMO REVOCANDI

A tricky rule in this area of the law is 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.

This presumption is one of the reasons why we recommend that you leave your original will with your lawyers for safekeeping in their deeds system.  Even if the lawyers lose the original will, they generally have good enough systems in place to ensure that they can still receive a grant of probate of a copy of that will so that your wishes are still followed and you don’t end up in a situation where, despite your best efforts, you are treated as if you do not have a will at all.

FOR MORE INFORMATION

If you have a deceased friend or family member and their original will cannot be found, get in touch. You still have plenty of options and we can work through with you which one will achieve the best outcome for the estate and make whatever application is required to get the estate sorted.

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 rarely be required to make. Your client need not 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 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.

Read more articles

Prickly Probates Series – Mentally Incapable Executors

Prickly Probates Series – Mentally Incapable Executors

The first in our Prickly Probates series – People are living longer nowadays as a general rule than they did in previous generations, and while this is lovely in so many ways, it is also causing a prickly issue for probate applications to occur more often. 

When someone is appointed as an executor of a will, and they are still alive when the will-maker dies, they are obliged to either apply for probate and administer the estate or to step down as the executor (which allows somebody else to apply for probate and administer the estate). Accordingly, if someone is appointed as executor when the will-maker dies, and that person is not capable mentally of doing either of the above, that creates a Prickly Problem for the Probate Paperwork.

This scenario can come up in any situation but it is particularly often the case when an elderly couple appoints each other as executors in the first instance. Sometimes the surviving spouse, while alive, is not mentally capable of administering the estate of their spouse once their spouse has died.

Happily, there are a number of options to deal with the issue:

THE WILL ITSELF

The will itself provides the easiest solution to this problem if the wording allows it.  If the will appoints an executor on the conditions that they are both:

• alive; and

• able to be the executor;

an executor who is not mentally capable can be simply passed over for the next executor in the list of executors in the will (or any other executor who is appointed jointly with them). 

However, many wills appoint the executor only on the condition they are alive, which means that if they are alive but not able, from the court’s point of view, they still expect that executor to apply for probate themselves.

RENUNCIATION

In some cases, the will wording is less important.  If the executor is not up to completing the estate administration, but they are well enough in their mind to understand their decision to step down as an executor, they can sign a document to step down as the executor which is called “renouncing probate”.

If renunciation is possible, then it is not important what the will says about the conditions for an executor to be appointed.  The executor simply can step down by signing the renunciation document, and that is the end of the issue. Whoever is the next executor in the list of executors in the will can then apply for probate themselves.

PROBATE TO THE ATTORNEY OF MENTALLY INCAPABLE EXECUTOR

There are many situations, however, where:

• the executor is not able to renounce; and

• the will either does not provide for that executor to be passed over due to mental incapacity; or

• the will does allow the executor to be passed over due to mental incapacity, but there are no other executors in the will to use as an alternative.

It is in these situations that an application for probate to the attorney of a mentally incapable executor is most appropriate (and very helpful).

Essentially what this application does is allow someone who has been appointed as an attorney for the mentally incapable executor under an enduring power of attorney to apply for probate on their behalf and perform that executor’s duties in administering the estate on their behalf.

In the example of an elderly couple used earlier, the people who have been appointed attorneys under an enduring power of attorney for the surviving spouse are, more often than not, the couple’s children.  These children are also usually the beneficiaries of the will once both parents have died, so it makes good sense that they should take on the role of executor for their deceased parent.

This procedure can also be used for someone who has been appointed a property manager for the mentally incapable executor.  The main difference between an attorney in this context and a property manager is that the enduring power of attorney is signed by the person who has become mentally incapable before they became mentally incapable. Therefore the attorney is appointed by that person.  Becoming a property manager, however, happens after the person in question has already become mentally incapable (and they have not already signed an enduring power of attorney) and the property manager is appointed by the Family Court.

DIFFERENCES FROM A USUAL PROBATE APPLICATION

There are many differences from a usual application for probate in an application like this, but the main ones are:

• the GP of the executor who is mentally incapable has to sign their own separate affidavit for the court which explains that the executor is not capable to administer the estate;

• a copy of the enduring power of attorney must be provided as an exhibit to show who has been appointed the attorney under that document; and

• the probate that is granted to the attorney for the mentally incapable executor is limited until:

  • the mentally incapable executor regains mental capacity and applies for probate themselves;

  • three months from the date of death of the mentally incapable executor;

  • the attorney ceases to be the attorney of the mentally incapable executor under the enduring power of attorney; or

  • the court removes the attorney as executor due to:

    • absence from New Zealand;

    • their wish to be removed; or

    • their incapacity to complete the role of executor.

FOR MORE INFORMATION

If you find yourself in the unenviable situation of requiring a grant of probate when the only possible executor is mentally incapable, get in touch. We can take you through your options and make this complex application simple and painless.

If you are a lawyer struggling to make one of these applications for a client, you might consider using us to complete the application for you. We run a service where we prepare the application, send it to you to sign with your clients, and then we make the application to the High Court. Once complete, we send the successful grant back to you. 

Your client need not know we exist (we are simply charged as a disbursement on your invoice to your client) and because we are experienced in making these applications and within walking distance from the High Court probate unit (so our applications are hand-delivered instead of relying on the post back and forth to the court), we can save you and your client time and money. Instead of having to come up to speed on a complex application, you will rarely have to make; we’ll make these applications straightforward and painless for you.

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@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

COVID-19 - The Effect on Probates

Many legal processes have been altered substantially during these unprecedented times to take into account the temporary inability of people to sign documentation face-to-face. Applications for probate and letters of administration are no exception.

While stopgap measures have been enacted through emergency legislation and with new and creative procedures for some legal processes, probate and letters of administration applications (being in their nature not usually terribly urgent) have in a sense ground to a halt.

Emergency legislation has allowed people to sign wills without the usually necessary two witnesses in the same physical place with them. Even before the legislation was passed, lawyers were creating wills and setting them up with the client so that if the client were to die before the will was signed in the usual way, an application to the court to declare the will valid (because the client had done everything to show that they intended to sign it in the usual way and they were simply prevented from doing so by the circumstances) was as well set up for success as it could be.

We have also published articles about creating wills and enduring powers of attorney and how they are signed during this time.

An application for probate has three main issues to overcome:

• Firstly, an affidavit must be signed by the executor of the will (or, in the case of letters of administration, the proposed administrator of the estate) in the physical presence of a person who is authorised to take oaths in New Zealand (usually a lawyer, justice of the peace or a notary public). While the courts, in general, are accepting affidavits which have not been signed in the usual way (or sometimes affidavits which have not been signed at all) in urgent cases, this is not the case with the High Court probate unit. This brings us to the second point;

• Secondly, even if a document such as an affidavit is signed other than in the usual way (for example, by audiovisual means), the most important thing is not how the document is actually signed but whether the organisation that is being presented with the document is willing to accept a document signed in that way. At this stage, the High Court probate unit will not accept affidavits signed by any means other than the usual personal presence. At any rate, they always insist on original signatures so a scanned version of a document, even if it was not signed by audiovisual means, would also not be acceptable; and

• Finally, the organisation must have the means to accept and process the application remotely. While the High Court probate unit has already made great strides towards remote working during this time, they have not as yet provided lawyers with a means of sending them probate applications (other than urgent ones) to their team while everyone is working remotely. They usually will only accept applications by hand (which is our preferred method to save on waiting for the post given that we are located so close to their office) or by post. At the moment, email would be the only viable option for sending in applications.

The important exception to note is that the above does not apply for urgent applications. If an application is urgent, the High Court probate unit will accept the application by email and similar flexibility will apply in the signing of affidavits as the other courts are practising at the moment. This is in line with the philosophy in other legal processes and indeed in questions of how to complete things all around the country. If it is urgent and essential, rules will be flexible. If not, it needs to wait.

What we are doing at Morrison Kent is preparing all pending non-urgent applications for probate and checking them with our clients so that they are completely ready as soon as we move to a level that allows the affidavits to be signed in the usual way and the application to be brought to the probate unit. Nothing is stopping us from the preparation of the documentation and, using this method; we will be able to put the applications in very quickly as soon as the probate unit reopens which will hopefully avoid the rush.

We are sure that the probate unit will put in place extra resources as soon as they can resume fully to ensure that the backlog is worked through effectively. In the meantime, we continue to monitor the situation and are alert for any news as this rapidly developing situation continues to evolve.

We hope that this challenging time for the processing of applications will lead to innovation and improvement. The long and venerable history of these types of applications shows us that improvement and innovation are the foundation of this entire system – this is simply the next chapter.

For More Information

If you're interested in reading about the fascinating history of probate applications, we have published an article about that here. And if you require any assistance with probate or letters of administration, contact our specialist Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate 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.

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ABOUT THE AUTHOR

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 History of Probate

In our recent article about the steps to obtaining probates, we introduced you to some of the eccentricities of probate applications and the terms used in them.

In this article, we will take a more in-depth look at the history behind probate.

Probate, letters of administration, trustees, executors, administrators and all manner of sentences that don’t quite make sense in modern plain English; you might have wondered why these are necessary and why they exist (as do many lawyers!).

The answer is not as complex as you might think. The circumstances of an estate present a problematic situation for the law: there is often a reasonably large amount of money which needs to find a new home and the person whose money it was is not around to dictate exactly what happens after they have died.

As a response to this, the law (because this is New Zealand, we are talking about the laws of England and the United Kingdom primarily) over many hundreds of years has created a process for dealing with these situations. The process is, because of the vast amount of time that has passed since it began, steeped in history, historical terms and historical eccentricities.

In earlier times (even a hundred years ago) many of the terms in these applications were recognisable (albeit sometimes only to lawyers) because they were used more commonly in all areas of law. The way that the court determines the application would have been recognisable to the proverbial Knight in Shining Armour; applications for probates, letters of administration and reseals are the only surviving applications from the Mediaeval writ system of justice.

In the writ system, if you had any complaint to bring before the court, you could only be successful if you did two things:

• your complaint was good enough to win the case based on the law (which is still the case today); and

• you filled out your writ correctly (which is not the case today except for applications for probates, letters of administration and reseals).

The writs were collections of words that you would fill out with the details of your case.

A fanciful example would be: “I, [full name here], do hereby allege that [full name of defendant here] failed to paint my fence on [date here] when I had already paid him the sum of [$amount here] to do so.”

Your lawyer would fill out the writ, bring it to court, and the court would decide based on:

• Was this the correct writ for the situation at hand?

• Was the writ filled out correctly? Did the situation actually warrant some compensation for you? Only at this late stage did the court actually look into whether your friend did paint your fence and whether his failure to do so meant he owed you some money.

The skill of picking the correct writ and filling it in perfectly was incredibly important, because if your lawyer’s writ was the wrong one or the lawyer left out or misspelled a single word, you would lose the whole case, regardless of whether your complaint was valid or not!

Therefore, if your name was Angus and your lawyer wrote “Agnus” in the writ to the court in the example above, your friend got away with not painting your fence, still being paid and there was legally nothing you could do about it.

As you can imagine, that situation often produced a rather unfair result. So the law, on the whole, has moved away from this system to one where the exact wording of the documentation given to the court is less important (although still important to get right in principle) than the validity of the complaint itself.

But not so for applications for probates, letters of administration and reseals.

The same issue with mistakes applies today as it did hundreds of years ago. If you were to get a single word wrong in the probate application, even the mismanagement of page numbers, the court would pick it up.

Happily, the court does not throw out the whole application now if the words are incorrect, but they certainly do send it back and ask for it to be amended until it is perfect (or very close to perfect). Picking the correct application to make, especially if the situation is complex, is also an important skill and the court will insist that a new application is made in the correct form if the one chosen doesn’t accurately cover the situation at hand.

Technically, it is possible for a non-lawyer member of the public to make an application to the court for probates, letters of administration or reseals. But, the above complexity is why many people choose a lawyer (and ideally a specialist lawyer in these types of applications) to make the application instead.

Obtaining probate can be an overwhelming process. While it is complicated, we can ensure that your experience is painless and straightforward. At Morrison Kent, we also run a service to make these applications for fellow lawyers if they lack the expertise, the time or the inclination to do so themselves.

FOR MORE INFORMATION

If you are struggling with a Mediaeval writ, or you generally need a Knight in Shining Armour in this area of the law, our probate expert Jenny Lowe would be delighted to assist. Jenny is one of few legal specialists in New Zealand for these types of 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

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About the author

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

Probate - Step by Step

Obtaining a grant of probate can seem like an overwhelming process. While it is complicated, we can ensure that your experience is painless and straightforward.

Probate applications are some of the most challenging applications to make to the court. They are the only surviving vestige of the mediaeval writ system, a system of law in England which required the application to be made using precise words. If completed incorrectly, even with the slightest error in its wording, the application will be denied. Accordingly, the wording of the documents that you will see is archaic and sometimes hard to follow or doesn’t follow common sense.

For example, there is a part of the affidavit where the executor must tell the court when the deceased died. Instead of saying “the deceased died on 1 January 2020” (which is perfectly accurate and what it says in the death certificate), the application must say “the deceased died on or about 1 January 2020” unless the death certificate gives an exact time of death (which it rarely does).

The people who make the application for probate are the executors listed in the will. Sometimes not all of the executors in the will wish to (or can) make the application for probate, or sometimes none of them can or do. In these cases, we can make similar applications by the remaining executors or someone else if there are no remaining executors.

OUR PROCESS

This article gives you a step-by-step summary of what the process looks like for simple probate when you engage us right through the process, to when the court produces the grant of probate:

Our first step is always to take your instructions which involve us asking you for information and documentation about the estate.

Examples of what we require include:

• Date of death (which is often provided by giving us a copy of the death certificate);

• The updated addresses and occupations of the deceased and the executors (sometimes the will gives addresses and occupations for the deceased and the executor, and if these are out of date, the probate application has to note the current details);

• A copy of the will; and

• Whether you would like to swear the affidavit (which involves holding the Bible) or whether you 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);

PREPARING THE APPLICATION

We then prepare the application for the court based on the information you have given us.

These next steps are as follows:

• We send you the affidavit which is the part of the application that the executors have to sign, and so you need to check that everything it says is true and correct from your point of view;

• Once the application is prepared, the executors must sign the affidavit. You can sign this by seeing any solicitor in New Zealand who will usually take an affidavit free of charge. If you are overseas, you will need to see a notary public to sign the affidavit;

• Once the affidavit is signed, we complete the rest of the application and submit it to the court. 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 6 to 8 weeks to produce the grant of probate once the application has been received, but, if the circumstances require it, we can make an urgent application which only takes 2 to 4 weeks.

LETTERS OF ADMINISTRATION

When you’re applying for letters of administration, the process is a bit different. Letters of administration serve the same purpose as probate; it just covers a situation where there is no will (whereas probate is for the case where there is a will).

For more detail on the difference between probate and letters of administration, see our article for a handy comparison here.

Because there isn’t a will, we will need a bit more information such as:

• The names, addresses and dates of birth of all the children of the deceased;

• Whether any of the children were adopted;

• The names and addresses of any current spouses or de facto partners of the deceased; and

• The gross value of the estate (which can be a rough figure).

There are many ways in which a probate application or an application for letters of administration can be more complex and, in each of these situations, we make a slightly different application to the court. Sometimes the application is so complex that it is worthwhile for us to take all of your instructions, prepare all of the documentation and then send it to the court for them to check before the executors even sign it.

On the whole, the court is very particular about these applications (because they are the evolved version of the writ system) and it is not uncommon for them to come back requiring further information or further documentation. Having said that, usually if the court comes back asking for something further, it is good news. It indicates that the application is on the front of their list, and it is almost always quite easy for us to send further information, which then means that the application will soon be granted.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy we have one few legal specialists in New Zealand for these types of applications, covering both the simple and the complex. Jenny Lowe is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand.

Jenny can also provide a service for other solicitors who might dislike these applications or don’t do them often. We can complete the applications on another solicitors behalf and can even be completely invisible to the clients, which helps to alleviate the struggle for solicitors that are less familiar with the process and reduce the delay for clients when making a probate application. So, if you have any issue or matter relating to probates, or require a simple solution to deal with the application process more efficiently, don’t hesitate to contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.

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About the author

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

Probate and Letters of Administration – a helpful comparison

In our previous article, “What is Probate and Letters of Administration?”, we identified that in terms of their effect, probate and letters of administration are the same things with different terminology. 

Probate and letters of administration are essential because without them (unless the estate is very small), no one can access the estate’s assets.

Despite the same function they hold for running the estate, the two are very different in more than just terminology. Where their differences are most apparent is in the required applications to the High Court.

Who is entitled to the grant (the executor/administrator)?

The person (or persons) who are entitled to the grant are the people who are given the power to run the estate by the High Court of New Zealand. They find all the estate assets, turn them into cash (where necessary) and pay all the estate debts. They then distribute what remains to the beneficiaries of the estate.

Probate - The Executor

In probate, the person entitled to the grant of probate is called the executor and usually finding who they are is very simple; the executor is named in the will. A will often has multiple people to act as executor. They work either together or one after another, and so if a person has died or doesn’t want to act, then others named in the will can be appointed instead. An executor proves to the High Court that they are named as executor in the will by producing the original will to the High Court in their application for probate.

Letter of Administration - Administrator

In letters of administration, things are more complicated. Letters of administration are required when there isn’t a will, and so, therefore, there is nowhere obvious to look to find out who should be the executor (in the case of letters of administration, the executor is called the administrator). 

For these applications, there is a list of priorities in legislation, based on the relationship to the deceased. If someone wants to become the administrator, they check where they are on the list of priorities and make an application to the High Court asking to be appointed as administrator. 

In their application, they must include the written consents of all the other people who have a priority greater to or equal to theirs on the list.

Who receives the assets of the estate (the beneficiaries)?

The beneficiaries of an estate are those who receive the balance of the estate’s assets once they have been gathered together, and all the debts have been paid.

With a Will

As with the previous example, when there is a will, the answer is quite simple. The beneficiaries are listed in the will along with what each of them will receive from the estate. The original will is put into the application to the High Court for probate. No further proof is required.

Without a Will

When there is no will, and letters of administration are required, how do you know who receives the estate assets and how much each of them receives?

The government has set this out in legislation as well. There is a list of who in the family of the deceased person receives assets from the estate and how much they receive when there is no will. The intricate part with making an application to the High Court for letters of administration is that you have to prove who the deceased person’s family were. 

• Did they have a spouse or de facto partner?

• Did they have any children?

• Did they have any surviving parents?

• If there are no close family members, did they have more distant family members?

A search also needs to be conducted to ensure the deceased person didn’t have any unknown family members who would be entitled to receive their assets.

What about estates with assets in other countries?

In New Zealand, both probate and letters of administration can be granted for an estate where the deceased lived and died overseas but had assets in New Zealand.

Furthermore, if that estate is in a commonwealth country, the probate or letters of administration that they already have in their country of residence can be resealed.

If you would like to learn more about reseals, we will be covering the topic in our next article. Sign up for our newsletter here to receive a notification when the next article is published.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy, we are specialists in these complex applications for probates, letters of administration, and reseals in the New Zealand High Court. If you think you need probate or letters of administration (or a reseal) in New Zealand, please email jenny.lowe@nzprobatesandreseals.com for a consultation.

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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.

We make these complex court applications simple and painless - contact us today

What is Probate and Letters of Administration?

Under normal circumstances, each one of us is the only person who can deal with our assets. Our house, our bank accounts, our insurance policies – you’ll have all had the experience of contacting an organisation and being given the Third Degree to find out that you are in fact you. It’s a pain!

In the same breath, we can all appreciate why that is necessary. We’d hate for someone other than ourselves to be able to show up to the bank and access your bank accounts.

Keeping this in mind, when someone has died:

• How are your assets accessed and dealt with?

• How does the organisation being approached know you’ve really died?

• How do they know who they should be dealing with in relation to your assets?

• How do they know that this person will administer your assets in accordance with your last wishes in your will?

When organisations become aware that someone has died, they “lock” all your assets to avoid just this type of situation from becoming a problem. If you are not around to manage your assets, they do not want any unauthorised people to start managing them for you.

All your assets no longer belong to you when you have died; they now belong to an entity called your “Estate”. The only people who can run your Estate are the executor(s) of your will.

This is where probate is required.

PROBATE

Probate is the golden key that allows the executor of your Estate to unlock your assets.

Your lawyer obtains a grant of probate for the executor of the Estate by applying to the High Court where the executor proves and promises that:

• you really have died;

• they really are the person who is entitled to be the executor; and

• they will use all your assets in accordance with your last wishes in your will.

The High Court checks that the applications are in order and, if it is, they send out a document called probate.

LETTERS OF ADMINISTRATION

What is a grant of letters of administration?

Although it sounds slightly more complicated than probate, it is precisely the same thing except it is for an estate where there is no will.

It serves the same function; it just has a different name. In the case of letters of administration, the executors are called the administrators, but again they do the same job.

THE PROCESS

If you are an executor of an Estate, the best way to obtain probate (or letters of administration) is to contact one of our specialist lawyers, who will make the application for you.

The High Court typically takes 6-8 weeks to consider the application and issue the grant.

Once the grant is made, the Estate administration can begin in earnest as the executor will for the first time have access to all the estate assets.

Keep in mind that if the entire Estate’s assets amount to less than $15,000, you can usually obtain access to the assets without probate or letters of administration, so it is worthwhile checking the figures before making an application – we can also assist with this process.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy, we have specialist knowledge and a wealth of resources to make your application for probate or letters of administration as simple, efficient and painless as possible. If you think you might need probate or letters of administration, email Jenny Lowe on jenny.lowe@nzprobatesandreseals.com.

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About the author

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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.