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