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.
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 on 04 916 0153 or email email@example.com.