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Tuesday, June 5, 2012

Wills, Probate, & Letters of Administration in New Zealand

The deceased's Will is probated at the Court nearest to where the Executor resided or was convenient for him or her. Included in a Will/Probate files/applications are supporting documents and these may include Affidavits, Powers of Attorney, Death certificates etc.

Letters of Administration with Will annexed
A testator may have left a Will and for various reasons this Will can not be probated because:
1. The Executors named were deceased, incapacitated, bankrupt, overseas or could not or would not Act
2. The Will may not have been signed, witnessed, dated or have any Executors appointed etc
In the above circumstances application is made to the Court (a bond may be required) by the next of kin usually the spouse or eldest issue or by appointment of the Public Trustee. Letters of Administration with the Will annexed would be issued by the Court appointing an Administrator to administer the Estate.
Since 1929, an Intestate estate follows the line of what the average person would have done if a Will had been made.
Since 1939 an Act protects the family not mentioned in a Will. They are allowed reasonable maintenance from income.

Succession, Legacy & Residuary Duty Registers.
The registers of three duties or taxes payable on estates from 1867 to 1976 a register was kept for each tax. A person's name was entered in each with some appearing until 1910.

Testamentary Registers 1876 - 1962
Documented single death duty payable 1876 to 1962.
Death Duties was payable on all estates for which Probate was granted and cover at least half of the deaths in New Zealand. Most of these records are from Wellington areas. However, under the Inland Revenue Act 1974, all registers from 1921 onwards are restricted, and so it is only possible to search the entries up to 1921.

Probates & Letters of Administration
Prior to 1842, New South Wales had jurisdiction over our legal system. New Zealand followed England using Courts to seal Probate and Letters of Administration. The first Supreme Court was established in 1842 and the name of the court was changed in 1980 to the High Court.
The Original Will is required for Probate and referenced by the Court.
Probate and Letters of Administration are usually granted at the Court nearest to where the deceased lived e.g. if the deceased died in Palmerston North but lived in Wellington the Probate or Letters of Administration would be granted at Wellington.

  • If the deceased was not resident in New Zealand at the time of death but still owned property in New Zealand, probate would be granted at the nearest court to where the deceased's property was located
  • if the deceased owned several properties in New Zealand then probate would be granted at the Wellington High Court
  • if the deceased owned property in two different countries then probate would be granted in the country of origin and an Exemplification of Probate would be issued and the other country appointing an agent to act with the agent possibly being a law firm or relative
  • If the deceased appointed a Trust company as Executor of an Estate, probate may be granted at the Court nearest to the Head Office of the company.

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