Probate Errors That Bring an Estate to a Standstill

The probate application looked ready.

The executor had located the original will, ordered the death certificate and carefully signed the affidavit. The papers were filed with the High Court, and the family expected the grant to arrive soon.

Instead, the application came back with questions.

The deceased’s middle name was missing from one document. The affidavit did not explain a handwritten alteration in the will. One page had been copied incorrectly, and the proposed grant used wording intended for a different type of estate application.

None of these problems necessarily meant the will was invalid. However, each one had to be investigated, explained and corrected before probate could be granted.

For an executor already managing grief, bills, family expectations and an unoccupied home, a probate requisition can feel like a major setback. The frustrating part is that many delays begin with small inconsistencies that could have been identified before filing.

In New Zealand, a standard probate application commonly involves an application without notice, an affidavit supporting the application, the original will and a proposed grant. The current prescribed forms for an ordinary probate application include forms PR 1AA, PR 1 and PR 7. The prescribed forms are only a starting point, however. Additional evidence may be necessary when the will or surrounding circumstances contain anything unusual. citeturn700912search0turn700912search2

Understanding the most common mistakes can help an executor prepare a cleaner application and avoid unnecessary correspondence with the court.

## Why Probate Applications Are Examined So Carefully

Probate is more than permission to access a bank account.

When the High Court grants probate, it formally recognises the will and confirms the executor’s authority to administer the deceased’s estate. That authority may allow the executor to collect investments, transfer land, close accounts, sell property, pay liabilities and ultimately distribute inheritances.

The court therefore needs to be satisfied about several essential matters:

– The correct person has died
– The document presented is the deceased’s will
– The will was executed in a legally acceptable way
– The executor applying is the person entitled to the grant
– The information in the application is accurate and consistent
– Any unusual feature of the will has been adequately explained

Court staff cannot simply assume that a discrepancy is harmless. A minor error may be innocent, but it can also indicate that the wrong document has been filed, a page has been replaced, a signature is questionable or a later will may exist.

That is why precision matters.

## Mistake One: Using the Wrong Probate Forms

One of the easiest ways to delay an application is to begin with documents intended for a different type of grant.

Probate is generally sought by an executor named in a valid will. Letters of administration with the will annexed may be needed when there is a will but no named executor is able or willing to act. Letters of administration on intestacy apply where there is no effective will governing the estate.

These procedures are related, but they are not interchangeable.

A person may mistakenly prepare an ordinary probate application even though:

– The named executor died before the deceased
– The executor has renounced the role
– The will appoints no executor
– The appointment is conditional and the condition was not met
– The executor is a minor
– The original will cannot be found
– The applicant is merely a beneficiary rather than an executor
– The deceased left no valid will

The correct form depends on the legal basis for the applicant’s authority. Selecting the wrong procedure can affect the affidavit, supporting evidence, proposed order and the people who may have priority to apply.

Before drafting anything, identify exactly what grant is required and why the applicant is entitled to seek it.

## Mistake Two: Names That Do Not Match

A probate application may refer to the same individual in several places:

– The application heading
– The executor’s affidavit
– The death certificate
– The original will
– The proposed grant
– Supporting exhibits

If the deceased is described as “Margaret Anne Wilson” in the will, “Margaret Wilson” on the death certificate and “Margaret Annie Wilson” in the affidavit, the court cannot be expected to decide silently that all three names refer to the same person.

Similar problems arise with:

– Nicknames
– Former married names
– Māori names and alternative spellings
– Transposed middle names
– Missing middle names
– Titles used as though they were legal names
– Inconsistent punctuation or initials
– Different surnames appearing across older documents

The answer is not to alter the will or rewrite the death certificate. The inconsistency should be identified and, where necessary, explained in the evidence.

The same care is required with the executor’s name. If an executor was named under a former surname, the affidavit should make the connection clear.

A reliable approach is to create a name table before preparing the application. Record exactly how the deceased and each executor are described on every relevant document. Any difference can then be addressed deliberately rather than discovered after filing.

## Mistake Three: Incorrect Details About the Death

The affidavit normally records when and where the deceased died. These details should agree with the official evidence.

Common problems include:

– Using the funeral date instead of the date of death
– Recording the place of residence as the place of death
– Omitting that the death occurred overseas
– Using an approximate date without explaining why
– Entering the wrong year
– Copying information from a family notice rather than the death certificate

A single incorrect digit can create an apparent conflict between the affidavit and supporting documents.

Executors should work from the official death record when available. Where the precise date or location is genuinely uncertain, the affidavit may require specially drafted evidence rather than an unsupported guess.

## Mistake Four: Signing the Affidavit Incorrectly

An affidavit is sworn or affirmed evidence. It is not an ordinary form that should be completed, signed at home and later taken to someone for witnessing.

The person making the affidavit must sign it as part of the swearing or affirming process before an authorised person. New Zealand court guidance specifically warns that an affidavit should not be signed before the person taking the oath or affirmation is present. citeturn700912search5

Problems may arise where:

– The executor signs before attending the appointment
– A witness signs in the wrong capacity
– The jurat is incomplete
– The place or date of swearing is missing
– Multiple executors sign without the document reflecting how each oath or affirmation was taken
– Initials or signatures are missing from alterations
– An exhibit is not correctly identified
– The authorised witness fails to complete required details
– Pages are substituted after the affidavit has been sworn

The jurat is the section recording when, where and before whom the affidavit was sworn or affirmed. It may look like a small block of text, but an incomplete jurat can undermine the formal validity of the evidence.

Do not sign an affidavit until instructed to do so by the person authorised to take it.

## Mistake Five: Failing to Explain the Will’s Condition

The original will is evidence in its own right.

Its staples, markings, folds, holes, stains and alterations may tell a story. The court may ask questions when the document does not appear to be in the same condition as when it was signed.

Potential warning signs include:

– Removed or replaced staples
– Missing pages
– Different paper or printing
– Handwritten additions
– Words crossed out
– Correction fluid
– Torn sections
– Unexplained holes
– Detached pages
– Pencil notes
– Writing added after signature
– Damage affecting text or signatures

A well-meaning executor can create a problem by “tidying” the will. Removing a rusty staple, putting pages into plastic sleeves, adding page numbers or repairing a tear with adhesive tape may alter evidence that the court needs to assess.

The original will should be handled as little as possible. Do not write on it, restaple it, remove fasteners or attempt repairs.

Where the will contains an unusual physical feature, the affidavit may need to explain when it was discovered, who handled the document and whether anyone knows how the change occurred.

## Mistake Six: Overlooking Witnessing Problems

A New Zealand will is ordinarily signed by the will-maker in the presence of two witnesses who are together at the same time. The witnesses then sign in the will-maker’s presence.

Probate difficulties can arise where the document appears not to satisfy those requirements. Examples include:

– Only one witness signed
– The witnesses signed on different occasions
– A witness’s signature is missing
– The will-maker’s signature is in an unexpected place
– The attestation clause is incomplete
– Dates beside signatures do not match
– A witness cannot be identified
– A beneficiary or the beneficiary’s partner acted as a witness
– The will-maker directed another person to sign without the circumstances being recorded
– The document was signed remotely without the required legal safeguards

A witnessing defect does not automatically mean that nothing can be done. In some circumstances, the court may be asked to validate a document that does not comply with the ordinary signing rules. That is not the same as a routine probate application, however, and additional evidence and a different legal process may be required.

The mistake is pretending that an apparent defect does not exist.

Before filing, inspect the signature and witnessing pages carefully. Compare the dates, count the witnesses and read the attestation clause word for word.

## Mistake Seven: Missing the Original Will

A scan stored on a computer may show what the deceased intended, but it is not automatically equivalent to the original signed document.

A routine probate application generally requires the original will. When the original cannot be located, questions arise:

– Was it deliberately destroyed?
– Was it revoked?
– Is it held by a solicitor or storage provider?
– Was it lost during a house move?
– Is there a later will?
– Who last had possession of it?
– Why does only a copy remain?

Simply filing a photocopy without addressing those questions is unlikely to produce a straightforward grant.

The executor should conduct and document a methodical search. Check secure storage, personal files, correspondence, bank records and the offices of professionals who may have prepared or stored the will.

If the original remains missing, obtain legal advice before filing. Evidence may be needed from the person who prepared the will, witnesses, family members or anyone who last saw the original.

## Mistake Eight: Forgetting a Codicil or Later Document

A codicil is a formal document that changes or supplements a will. It may replace an executor, alter a gift or add instructions while leaving the rest of the will intact.

An executor who files the will but overlooks a codicil may obtain a grant based on incomplete testamentary documents.

Search for:

– Documents labelled “codicil”
– Later documents signed with witnesses
– Letters referring to amendments
– Copies held in a different location
– Notes from the person who prepared the will
– Evidence that the deceased collected an updated document

Not every handwritten note is legally effective, but it should not be discarded merely because it looks informal. A document that appears to express final wishes may require legal assessment.

File the complete set of documents that together constitute the will, supported by whatever evidence the circumstances require.

## Mistake Nine: Giving Inconsistent Information Across Documents

Probate papers are often prepared at different times. That creates opportunities for small facts to drift.

One form may describe the deceased as retired, another as a farmer and another as a company director. The place of residence may be written differently. One document may say there are two executors, while the proposed grant names only one without explaining the other.

Typical inconsistencies concern:

– Names
– Addresses
– Occupations
– Dates
– The number of executors
– The wording of the grant requested
– The existence of codicils
– Whether an executor has renounced
– Whether the will is the last will
– The place where the original was found

Before filing, compare the documents side by side. Do not proofread each form in isolation.

A useful final check is to imagine that the court knows nothing beyond the papers submitted. Do the documents tell one complete and consistent story?

## Mistake Ten: Ignoring an Executor Who Is Not Applying

Where a will appoints several executors, the application must accurately address each of them.

An executor may have:

– Died
– Renounced
– Lost decision-making capacity
– Chosen not to prove the will at that stage
– Become impossible to locate
– Been appointed only if another executor could not act
– Been incorrectly assumed to have “stepped aside”

One executor cannot simply disappear from the application because the family prefers someone else to manage the estate.

The papers must explain why probate is being granted to the applicant or applicants named in the proposed grant. Depending on the circumstances, formal renunciation or other evidence may be needed.

Renunciation should be considered carefully. An executor who has already taken substantial steps in administering the estate may no longer be able to renounce as easily as someone who has done nothing beyond protecting assets.

## Mistake Eleven: Preparing the Proposed Grant Incorrectly

Form PR 7 is the prescribed form of probate in common form. It is the document intended to record the grant once approved. citeturn700912search0turn700912search37

Errors in the proposed grant may include:

– Naming the wrong executor
– Omitting an executor who is applying
– Using the wrong type of grant
– Failing to mention a codicil
– Copying the deceased’s name incorrectly
– Referring to the wrong registry
– Using wording inconsistent with the application
– Leaving template instructions or alternatives in the document

A proposed grant should not be treated as a rough cover sheet. It must accurately reflect the order the court is being asked to make.

Delete unused alternatives, check every name against the will and ensure the grant requested matches the applicant’s legal entitlement.

## Mistake Twelve: Filing Before the Facts Are Ready

Speed is not always efficiency.

An executor may rush because beneficiaries are asking when they will be paid, a house needs to be sold or bank accounts are inaccessible. Filing an incomplete application can create more delay than spending several additional days checking the evidence.

Before filing, confirm that you have:

– The correct original will and every codicil
– The official details of the death
– The correct applicant or applicants
– The appropriate prescribed forms
– Consistent names, dates and descriptions
– Properly sworn or affirmed evidence
– Explanations for alterations or irregularities
– Evidence dealing with non-applying executors
– A correctly drafted proposed grant
– Every supporting document referred to in the affidavit

The Ministry of Justice notes that prescribed forms may not cover everything required for a court order. An unusual estate may need tailored affidavits or further evidence rather than creative alterations to a standard template. citeturn700912search0

## What Happens When the Court Raises a Requisition?

A requisition is a request for a problem to be corrected or further information to be supplied before the grant is issued.

It is not necessarily a rejection of the application or a declaration that the will is invalid.

The court may require:

– A corrected document
– A supplementary affidavit
– Evidence from a witness
– An explanation of an alteration
– Confirmation of identity
– A properly executed renunciation
– A revised proposed grant
– Evidence concerning a missing original
– Clarification of the applicant’s entitlement

Respond carefully and directly. Do not alter a sworn affidavit informally or send a casual explanation that fails to address the legal issue. The response may itself need to be sworn evidence.

Where the requisition is unclear or raises questions about the will’s validity, professional legal advice can prevent a second unsuccessful filing.

## The Best Defence Against Probate Delay

The strongest probate applications are rarely the longest. They are the ones that leave the fewest unanswered questions.

Read every document slowly. Check names character by character. Preserve the original will exactly as found. Identify unusual facts rather than hiding them. Make sure the affidavit, application and proposed grant all describe the same estate, the same deceased person and the same legal basis for the grant.

Probate is not delayed because the court expects perfection from grieving families. It is delayed when the evidence does not yet allow the court to make the requested order safely.

A few hours spent checking the application can prevent weeks of avoidable correspondence, repeated witnessing appointments and growing frustration among beneficiaries.

## Frequently Asked Questions

### 1. What forms are normally used for a New Zealand probate application?

An ordinary application for probate commonly uses forms PR 1AA, PR 1 and PR 7, together with the original will and any required supporting material. Different forms and evidence may be needed where there is no acting executor, no valid will or an unusual circumstance affecting the grant.

### 2. What is a probate requisition?

A probate requisition is a request from the court for a correction, explanation or additional evidence. It usually means the court cannot yet approve the application based on the documents filed. It does not automatically mean that the will is invalid.

### 3. Can I correct an affidavit after signing it?

A sworn or affirmed affidavit should not be informally changed after execution. Depending on the mistake, a corrected affidavit or a supplementary affidavit may be required. The appropriate method should be confirmed before anything is filed.

### 4. Will a spelling mistake delay probate?

A minor typographical error may not always cause a delay, but an incorrect name can create uncertainty about identity. Differences between the will, death certificate, affidavit and proposed grant should be checked and explained where necessary.

### 5. What happens if a will was witnessed incorrectly?

An apparent witnessing defect may prevent the application from proceeding as ordinary probate. The document may require additional evidence or an application asking the court to recognise it despite the defect. Legal advice should be obtained rather than assuming the will is automatically valid or invalid.

### 6. Can probate be granted from a photocopy of the will?

A photocopy does not normally replace the original in a routine application. It may be possible to seek a grant involving a copy, but evidence will generally be needed to explain the absence of the original and establish that the will was not revoked.

### 7. Do all named executors have to apply together?

Not necessarily, but every named executor’s position must be addressed properly. An executor may have died, renounced, reserved the right to apply later or be unable to act. The application should clearly explain why the grant is being sought by the particular applicant or applicants.

### 8. Is professional help required to apply for probate?

An executor may be able to prepare an application personally, but probate documents are technical and errors can cause significant delays. Legal assistance is especially valuable where the original will is missing, the will is damaged, witnessing is questionable, executors disagree or the estate involves unusual facts.