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How to apply for probate of a will

Introduction

In order to obtain probate of a will, the executor of the will must apply to the Registrar of the High Court.

What is "probate"?

"Probate" is the procedure whereby a will is recognised by the courts as being authentic (the word comes from a Latin word meaning "proof").

It is necessary for the executors of the will to obtain probate from the court so that they have authority to deal with the deceased's assets (and liabilities) and to enable distribution of the estate in accordance with the will.

Probate is carried out by the Registrar of the High Court after receiving an application from the executors. It involves establishing that it was in fact the testator (the maker of the will) who died, that the will was properly signed and attested, and that executors have been appointed. (See also How to make a will.)

How do I apply for probate?

In order to obtain probate for a will the executors must apply in writing to the High Court for probate to be granted in their favour.

Except when someone else is contesting the will, the application is made "ex parte", which means it's not necessary to give notice of the application to anyone else. This is called an application for "probate in common form", in contrast to an application for "probate in solemn form", which is where someone is contesting the will: see below, "What if someone is contesting the will?".

An ex parte application must use the general format shown in Form 20 of the High Court Rules (which is in the Second Schedule to the JUDICATURE ACT 1908). Usually applications are made through a lawyer; if you do use a lawyer, he or she must certify that the application is correct.

Which court do I apply to?

You must apply to the High Court, rather than the District or Family Court. You must file your application in the High Court registry nearest to where the deceased was living when he or she died or, if the deceased wasn't living in New Zealand, at the registry nearest to where the deceased's property is.

Documents to accompany the application

The application must be accompanied by the original will (not a copy) and a sworn affidavit (a statement sworn before a lawyer) by the executors that:

  • contains evidence of the death (preferably a sworn statement by the executors that they attended the funeral or by another person who attended the funeral, or a death certificate, although this is not preferred by the court)
  • contains evidence of where the deceased was living at the date of his or her death
  • states the executors' belief that the will is the deceased's last will

There is a special form for the sworn statement (see Form 51 of the High Court Rules), and this must be followed.

What if someone is contesting the will?

If someone is contesting the will, the process is more complicated and will involve a trial in the High Court. You must apply "in solemn form", which means you file a statement of claim under the standard procedure for civil proceedings in the High Court.

You name as defendants the people who are contesting the will and the people who, if you are unsuccessful, may be entitled to a grant of probate (if they are setting up another will as valid) or letters of administration (if they claim that no valid will exists and that the deceased therefore died "intestate").

The defendants then have the opportunity to file a statement of defence and, if they wish to, a counterclaim.

Smaller estates don't require probate

It is not necessary to apply for probate if the value of the estate, excluding joint assets, is under $11,000. However, if the estate includes the ownership of land or an interest in land, probate will be required regardless of the value of the estate.

Despite the fact that it is not legally necessary, it may nevertheless be advisable to obtain probate for an estate under $11,000 if there is a likelihood of the will being contested.

Cautionary notes
  • Applying for probate can be a relatively simple procedure, and it is possible for it to be done by the executor, without the services of a lawyer. However, most people choose to use a lawyer in order to avoid any potential problems.


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