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.

Read more articles

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

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

What is the difference between a trustee and an executor of a will?

If you have read a will, you may have noticed that there is a person (or people) appointed as the “executor and trustee” of the will.  This is the person who applies for probate of the estate.

In modern will drafting, it is rarely the case that a different person is appointed executor to the person who is appointed the trustee; they are almost always the same person (or people) with two titles, which seems unnecessary to say the least.

You might also notice that it is confusing to call someone a “trustee” of a will when most of the time when we talk about a “trustee” in terms of people’s personal assets we are talking about a trustee of a family trust.  That confusion holds the answer and another interesting journey through the history of estate administration and probate practice.

THE ROLE OF TRUSTEE

The basic definition of what it is to be a trustee is to be someone who holds assets on behalf of someone else (and there are specific rules and expectations on that person and on how they treat the assets).

Accordingly, you can see the similarity between a trustee of a will and a trustee of a family trust.  They are both the legal owners of certain assets (i.e. the estate’s assets or the trust’s assets), but they are not the owners in the sense that they can use those assets for whatever they want; they are holding those assets for the benefit of others (i.e. the people who are due the inheritance from the estate or the people who are entitled to benefit from the assets of the trust).

In fact, the reason that the “trustee” name is the same is that the second part of estate administration (the part where the estate funds are all gathered together and held for a time) is a type of trust.  It is a much simpler form of trust than a family trust in that its terms spelling out what the trustees can and cannot do (other than the laws governing trustees in general) are contained in the will (which is usually only 2-3 pages long). In contrast, a family trust’s terms are contained in a trust deed which is often 10-30 pages long, but it is at heart a trust nonetheless.

Sometimes the trust in a will lasts for a very short time while the estate is sorted and paid out (6 months to a year) and sometimes it lasts much longer.  If, for example, some of the beneficiaries are young children and the will stipulates that their inheritances must be held for them until they turn a certain age or if the will grants an interest in an asset (such as the family home) to one of the beneficiaries until that person dies, this type of trust can last for decades.

THE ROLE OF EXECUTOR

There is more to an estate than just holding money, however. Many jobs are peculiar to a situation where someone has died such as arranging their funeral, finding out what all their assets actually are, making sure those assets are safe and secure and selling or taking control of those assets.

These are the jobs of the first part of estate administration, and they are the jobs of the special role called “executor”.

The executor’s role has always been important, but especially so in earlier times where the framework of government and asset-holding organisations was not as seamless as it is now.  As our system of probate and estate administration comes almost entirely from England, I am referring back to England as it was, say, 150 plus years ago.

As an example, there needed to be someone whose job it was to make sure the deceased was buried.  You can imagine a situation (perhaps in a novel by Dickens) where a deceased person has an extravagant wish for their burial which their assets at death cannot afford or where their family cannot agree on where to bury them (in fact, this fact scenario does not require going back as far as Dickens – it was played out in recent times in New Zealand in the well-known case of Takamore v Clarke in 2012).

This was clearly enough of a problem to be a concern to the government (and a public health hazard) because there is a rule of estate administration which says that no matter what the deceased’s wishes were or what the deceased’s family’s intentions are, it is up to the executor to decide on how and where to dispose of the deceased person’s body.  This ensures that lengthy battles of families or unrealistic expectations of the deceased cannot lead to a person remaining unburied (or nowadays cremated) for very long because the executor can take control and do what is practical.

THE RELATIONSHIP BETWEEN THE EXECUTOR AND TRUSTEE ROLES

Historically, two separate people were sometimes appointed in these two roles, but that has long fallen out of common practice.

Most people use the terms executor and trustee interchangeably now, and in modern estate administration, there isn’t usually much call to do otherwise.  As they are the same people, why bother? 

However, it is worth knowing the difference for two main reasons.

Firstly, different rules apply to the behaviour of an executor to that of a trustee, and many special rules apply only to executors.  Usually, the roles occur one after the other: executor first followed by trustee, but sometimes someone can be acting as both on different tasks at the same time. While the rules rarely clash with each other, they are quite distinct.

Secondly, knowing the difference and why there is a difference makes the realm of estate administration and probate practice with its diverse and archaic terms more approachable and less frustrating for those who are unlucky enough to enter its gates unexpectedly.

FOR MORE INFORMATION

If you are struggling through the mire of estate administration terms, 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.

Read more articles