Pipiwharauroa Kōrero o Te Wā
Tairāwhiti Community Law Centre
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:
Getting our mokopuna back into and ready for learning is huge. Getting the right Kura and learning platform means a bit of research and thought. No longer accepting of the local school, whānau make all sorts of provisions and economic decisions to get their mokopuna to their Kura of choice. In pursuit of Te Reo, whānau travel for miles.
All the wrapping is in the land-fill. The tents packed away. All the whānau have gone back. Pā wars has been and gone. The credit card statement has arrived. The Te Matatini Kapa Haka teams from Tairāwhiti, and there are four of them, have re-convened. Our mokopuna are getting back into education.
In Tairāwhiti there is a quiet, constant and busy economic activity going on. Half the population wouldn’t even know about it. It’s probably one of the most significant and constant contributions to regional well-being. It’s called Whānau Cultural, Education and Economic Development.
The students have got their results. Others have got their new school uniforms. Yet others are enrolling at universities. Moving to university cities. Some are going to Boarding Schools. Most teachers are back planning and thinking. Kōhanga Reo and places for our little mokopuna are mostly back in business.
It’s a bit like farming in Tairāwhiti. Everyone knows about farming and forestry and all that though. We have all had our land block AGMs and got our dividends. Hardly any of our policymakers, local government, Health Board and the like really know about all the whānau activity going on and just how much it contributes to our wider grouping of Tairāwhiti.
Young people in Tairāwhiti are big business. Noting also that Kapa Haka in Tairāwhiti is big business. Whānau Christmases in Tairāwhiti are huge. Almost bigger than R&V. Although none of the whānau have bought tickets to come to the Whānau festive gala and hakari. Whānau and their whakapapa are big business in Tairāwhiti. Most are extraordinary in their gatherings which might include a wedding, a birthday, an unveiling, a wānanga, a christening. Big ones involve marquees, huge grocery orders, decorations, travel, accommodation, advertising, entertainment, all sorts of activities where people pay money. Lots of it. Kapa Haka and its preparation is big. Bigger than Ben Hurr. They begin flocking and gathering well in advance of the national competitions to preen and practice. They go on diets and get fit. They get new costumes. They compose new items. They bring some of the whānau in from other places. They have chefs, designers, tailors, manicurists, make-up artists, fitness gurus, voice trainers, baby-sitters, travel managers and a whole host of technical expertise. They book out whole complexes and marae for weekend after weekend.
Our Aunty Tangiwai Ria got a New Year’s Honour for being one of our top Kapa Haka authorities. Top in the world actually. There are now more and more younger Tangiwai types than ever before in Tairāwhiti. That’s a Blimmin' huge growth industry. Once we pay off our Christmas heavily debited credit cards, once we get our mokopuna settled into their new 2017 lives, once we get our 50 strong and there are four of them, plus they all have support crews of hundreds, on stage in the nationals, whānau will have contributed heaps and heaps to the local economy. Once we have had all of our Land Block AGMs, paid our accountants and lawyers and paid our dividends to all our shareholders. Once the Iwi have operationalised their post Treaty settlement activities and done all their business in Wellington and other parts of the world. Boom! That’s Whānau koha and contributions to Tairāwhiti Regional Development like nothing else. And the good thing is we do it year after year after year. Happy New Year ngā whānau katoa o Te Tairāwhiti.
• 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
administration (if they claim that no valid will exists and that the deceased therefore died "intestate").
There is a special form for the sworn statement (see Form 51 of the High Court Rules), and this must be followed.
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.
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
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
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.
Kohitātea (January) 2017 edition of Pipiwharauroa