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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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

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