Affidavit Mistakes That Can Stall Probate

The executor believed the probate application was finished.

The deceased’s original will had been located, the death certificate was available, and the affidavit had been signed in front of an authorised witness. The papers looked formal, complete and ready for the High Court.

Then the court raised a requisition.

The affidavit stated that the deceased died on 8 March, while the death certificate recorded 6 March. A codicil mentioned elsewhere in the application had not been identified as an exhibit. The executor had also signed the affidavit before arriving at the witnessing appointment.

None of those mistakes necessarily meant the estate could not receive probate. They did mean the application could not proceed in its existing form.

A corrected or supplementary affidavit might be required. The executor could need another witnessing appointment, additional documents and a carefully drafted response to the court. What seemed like a small shortcut had added weeks to the administration.

In New Zealand, a probate affidavit is sworn or affirmed evidence supporting the executor’s application for authority to administer the estate. It is not simply a questionnaire. The court relies on it to establish the deceased’s identity, the will being proved, the executor’s entitlement and any unusual circumstances requiring explanation.

The prescribed probate forms are not ordinary fill-in-the-blank documents. Their wording must be adapted accurately to the facts of the estate, and extra evidence may be required when the standard form does not tell the complete story. citeturn873914search0turn873914search1

Understanding the most common affidavit errors can help an executor avoid preventable delay.

## Why the Probate Affidavit Matters

Probate formally recognises a will and confirms the executor’s authority to administer the deceased’s estate.

Once probate has been granted, the executor may be able to collect bank funds, deal with investments, transfer or sell land, pay liabilities and distribute the remaining estate.

The affidavit provides the factual foundation for that grant. It may confirm matters such as:

– The deceased’s identity
– The date and place of death
– The existence and date of the will
– The executor’s appointment
– The identity of any codicils
– The condition of the original documents
– The position of every named executor
– The applicant’s entitlement to probate

If those facts are incomplete or inconsistent, the court cannot safely assume what the executor intended to say.

A probate requisition is therefore not pointless formality. It is the court asking the applicant to correct or prove something before legal authority is issued.

## Error One: Copying Standard Wording Without Adapting It

The prescribed affidavit form provides a structure for an ordinary application. It does not guarantee that every sentence applies unchanged.

Problems arise when applicants leave in wording that is:

– Factually incorrect
– Inconsistent with the will
– Intended for several executors when only one is applying
– Intended for a will without codicils
– Based on the wrong type of grant
– Inapplicable because an executor has died or renounced
– Incomplete because unusual facts require additional evidence

For example, the affidavit may describe the attached document as the deceased’s last will when a later codicil also exists. It may state that the applicant is the sole executor even though two other executors are named.

The executor should read each paragraph as a sworn statement and ask, “Can I personally confirm this is true?”

Do not preserve wording merely because it appeared in the form. A prescribed form must still be tailored to the particular proceeding.

## Error Two: Using the Wrong Type of Affidavit

An affidavit for ordinary probate is not automatically appropriate for every estate involving a will.

Ordinary probate is usually sought by an executor named in a valid will. A different application or additional evidence may be needed where:

– No executor is appointed
– Every executor has died
– The executor has renounced
– The original will is missing
– The applicant is a beneficiary rather than an executor
– The will may not have been properly witnessed
– The deceased left no valid will
– A document requires validation as an informal will

Trying to force an unusual estate into the ordinary probate affidavit can produce misleading evidence.

Before drafting, identify the exact grant being requested and the legal basis for the applicant’s entitlement. The application, affidavit and proposed grant must all seek the same form of authority.

## Error Three: Incorrect Names

Names must be checked character by character.

The deceased may be described differently across:

– The will
– A codicil
– The death certificate
– The probate application
– The affidavit
– The proposed grant

Common inconsistencies include:

– A missing middle name
– Initials used in one document
– A former married surname
– An alternative spelling
– A nickname
– Names appearing in a different order
– A Māori name used alongside an English name
– A typographical error repeated from an old document

The same issue can affect the executor. A person may have been appointed under a former surname but apply under their current legal name.

Do not alter the will to make the names match. The affidavit should identify and explain a material variation where necessary.

Create a comparison sheet before drafting. Copy the names exactly as they appear in each source document and identify every difference requiring explanation.

## Error Four: Recording the Wrong Date of Death

Dates are easy to mistype and difficult for the court to ignore.

An applicant may accidentally use:

– The funeral date
– The date the death was registered
– The date the family was notified
– An estimated date
– The correct day but wrong month
– The right date with the wrong year

The affidavit should agree with the official death record unless there is a genuine reason why the recorded information requires explanation.

The date matters because it connects the affidavit to the correct deceased person and can affect the estate’s legal timeline.

Do not rely on a funeral notice or family message when an official death certificate is available. Read the date directly from the certificate during the final proofread.

## Error Five: Confusing the Place of Death With the Home Address

The deceased’s place of residence and place of death are not necessarily the same.

A person may have lived in one city but died:

– In hospital elsewhere
– At a residential-care facility
– While travelling
– Overseas
– At another person’s home
– At an accident location

The affidavit should not state that the deceased died at their home address merely because that address appears elsewhere in the application.

Check each field and paragraph carefully. The deceased’s final residence, place of death and estate address may serve different purposes in the documents.

## Error Six: Leaving Out a Codicil

A codicil formally changes or supplements a will. It may replace an executor, alter a gift or amend another clause.

If a codicil exists, the probate application must deal with the will and codicil together.

Errors include:

– Mentioning the codicil in the application but not the affidavit
– Referring to the wrong date
– Failing to attach or identify it correctly
– Describing the will as the complete testamentary document
– Omitting the codicil from the proposed grant
– Assuming a handwritten page is irrelevant without obtaining advice

Search carefully for later documents before swearing the affidavit. A codicil may have been stored separately from the will.

Every document being admitted to probate must be described consistently across the complete application.

## Error Seven: Missing or Incorrect Exhibits

An affidavit often refers to documents that support its evidence. Those documents must be properly identified and dealt with as exhibits.

Common exhibit problems include:

– Referring to an exhibit that is not attached
– Attaching a document never mentioned in the affidavit
– Using different exhibit labels in the text and certificate
– Omitting pages
– Attaching an illegible copy
– Failing to include a codicil
– Mixing up documents from different estates
– Adding an exhibit after the affidavit was sworn
– Replacing an exhibit without re-swearing the evidence

Exhibits should be marked clearly so the court can connect each document to the relevant paragraph.

Before the witnessing appointment, use a checklist:

– Is every exhibit mentioned in the affidavit present?
– Does every attached exhibit have a matching reference?
– Are the pages complete and in order?
– Are the labels consistent?
– Is the correct version attached?
– Does the exhibit require an authorised person’s notation?

The authorised witness completes the necessary witnessing steps for the affidavit and its exhibits. Exhibits should not be added casually after execution. citeturn873914search3turn873914search4

## Error Eight: Signing Before Meeting the Witness

An affidavit must be sworn or affirmed before an authorised person. The executor should not sign it at home and later ask someone to witness the existing signature.

The witnessing process is part of what turns the written statement into sworn or affirmed evidence.

The executor should bring:

– The complete affidavit
– Every exhibit
– Suitable identification
– Any document required by the authorised witness

The executor then takes an oath or makes an affirmation and signs as directed.

An oath has a religious form. An affirmation is non-religious. Both have the same legal effect.

For an affidavit used in the High Court, authorised people in New Zealand generally include a Registrar or Deputy Registrar of the High Court or District Court, a Justice of the Peace, or a solicitor of the High Court. citeturn873914search5

## Error Nine: Using an Unauthorised Witness

A neighbour, family member, colleague or ordinary beneficiary cannot witness a High Court affidavit merely because they are independent adults.

The witness must have legal authority to administer the oath or affirmation.

Do not confuse:

– Witnessing an ordinary signature
– Certifying a copy
– Witnessing a statutory declaration
– Taking an affidavit for use in the High Court

These functions can have different legal requirements.

Before attending an appointment, confirm that the person is authorised to take the particular affidavit. This is especially important when the executor is outside New Zealand, where separate rules may govern who can take the evidence.

## Error Ten: An Incomplete Jurat

The jurat is the formal section recording the swearing or affirmation.

It commonly identifies:

– Who swore or affirmed the affidavit
– Where it occurred
– The date
– The authorised person before whom it was made
– The authorised person’s signature and capacity

A missing location, date or witness description can make the execution appear incomplete.

The executor should inspect the jurat before leaving the appointment. Do not assume the authorised witness will detect every issue in a probate-specific document.

Check that:

– The correct option has been used for an oath or affirmation
– The date is accurate
– The location is recorded
– The witness has signed
– The witness’s authority is shown
– Multiple deponents have been handled correctly

## Error Eleven: Failing to Initial Pages or Alterations

Affidavits should not contain unexplained changes.

Crossed-out words, handwritten insertions and corrected dates may need to be initialled by the person making the affidavit and the authorised witness.

Pages may also require initials as part of the execution process.

Problems arise when:

– A correction is made after witnessing
– Only the executor initials an alteration
– A page is replaced after swearing
– An insertion is made in different handwriting
– Blank spaces remain that could later be completed
– Page numbering is inconsistent

Court guidance instructs affidavit makers to initial the relevant pages and changes during the witnessing process. citeturn873914search4

The cleanest approach is to correct the draft before the appointment and print a fresh version. Handwritten changes should be the exception, not the plan.

## Error Twelve: Adding Information After the Affidavit Is Sworn

Once sworn or affirmed, the affidavit should not be edited as though it were a word-processing document.

Do not:

– Insert a missing date
– Attach another exhibit
– Replace a page
– Correct a name silently
– Add a paragraph
– Change the requested grant
– Use correction fluid
– Backdate an amendment

A material correction may require a new affidavit or a supplementary affidavit explaining the issue.

The court must be able to identify which statements were actually sworn or affirmed before the authorised witness.

## Error Thirteen: Ignoring the Condition of the Will

The affidavit may need to address the physical state of the original will.

Potential concerns include:

– Removed staples
– New staples
– Detached pages
– Tears
– Holes
– Handwritten additions
– Crossed-out clauses
– Correction fluid
– Different paper or printing
– Missing page numbers
– Damage affecting a signature

A well-meaning executor may create the problem by repairing or reorganising the document.

Do not tape, laminate, restaple or write on the original will. Preserve it exactly as found and record any unusual features.

Where an alteration or damage exists, additional affidavit evidence may be required from the executor, the person who stored the will, a witness or the person who prepared it.

## Error Fourteen: Failing to Address Every Executor

If the will appoints several executors, the affidavit must explain the position of each one.

A co-executor cannot simply vanish from the documents because they are busy or do not want to participate.

A named executor may have:

– Died
– Renounced
– Chosen not to prove at that stage
– Lost capacity
– Been appointed only as a substitute
– Become impossible to locate

Each situation may require different wording or evidence.

Do not describe yourself as the sole executor when you are merely the only executor currently applying.

Formal renunciation also requires care. A person who has already substantially acted as executor may not be able to step aside as easily as someone who has taken no administrative action.

## Error Fifteen: Including Opinion Instead of Evidence

An affidavit should establish facts, not argue emotionally for the result.

Unhelpful wording includes:

– “I deserve to be executor.”
– “The other relatives cannot be trusted.”
– “The will is obviously fair.”
– “Nobody could possibly challenge it.”
– “The deceased would never have changed their mind.”

Relevant evidence may include what the executor personally saw, did, received or found. Where information comes from another source, that source may need to be identified appropriately.

The affidavit should not become a family-history essay unless those facts are legally relevant to an issue the court must determine.

Clear, restrained evidence is more persuasive than unnecessary accusation.

## Error Sixteen: Failing to Compare the Entire Probate Package

An affidavit can be internally correct but inconsistent with the other documents.

Before filing, compare the affidavit with:

– The original will
– Every codicil
– The death certificate
– The application
– The proposed grant
– Any renunciation
– Every supplementary affidavit
– Exhibit certificates

Check:

– Names
– Dates
– Addresses
– Occupations
– Registry details
– Executor identities
– Will and codicil dates
– The type of grant requested

The application should tell one coherent story from beginning to end.

## What Happens When the Court Finds an Error?

The court may issue a requisition requesting correction, clarification or further evidence.

The executor may be asked to provide:

– A replacement document
– A supplementary affidavit
– A properly witnessed affidavit
– A missing exhibit
– Evidence explaining a name variation
– An account of damage to the will
– Information about a non-applying executor
– A corrected proposed grant

A requisition does not automatically mean the application has failed. It means probate cannot yet be issued on the evidence provided.

Respond to the exact concern raised. A casual email may not be sufficient where the court requires sworn evidence.

## A Final Affidavit Checklist

Before attending the witnessing appointment, confirm that:

– The correct probate procedure is being used
– Every paragraph is true
– Names match or variations are explained
– The date and place of death are accurate
– The correct will and codicils are identified
– Every executor is accounted for
– Every exhibit is attached and correctly labelled
– Irregularities in the will are addressed
– The affidavit has not been signed
– No blank alternatives remain
– The application and proposed grant are consistent

After witnessing, confirm that:

– The executor signed in the authorised person’s presence
– The oath or affirmation was completed
– The jurat is complete
– Required pages were initialled
– Alterations were properly initialled
– Exhibits were correctly endorsed
– Nothing was added or changed afterward

A probate affidavit does not need elaborate language. It needs accurate facts, correct execution and complete supporting documents.

The court is rarely impressed by confident wording that leaves unanswered questions. A modest affidavit that accounts for every document, date and executor is far more likely to move the estate forward without delay.

## Frequently Asked Questions

### 1. What is the purpose of a probate affidavit?

It provides sworn or affirmed evidence supporting the executor’s application for probate. It helps establish the deceased’s identity, death, will, executor appointment and the applicant’s entitlement to the grant.

### 2. Can an executor use the standard wording without changing it?

Only where every statement accurately fits the estate. Probate forms must be adapted to the particular circumstances, and extra evidence may be needed for codicils, name variations, missing executors or unusual wills.

### 3. Who can witness a High Court probate affidavit?

Within New Zealand, it can generally be taken by a Justice of the Peace, a solicitor of the High Court, or a Registrar or Deputy Registrar of the High Court or District Court.

### 4. Can the affidavit be signed before the witnessing appointment?

No. The executor should sign while taking the oath or affirmation before the authorised person. A previously signed document may need to be prepared and executed again.

### 5. What happens if an exhibit is missing?

The application may be requisitioned. Depending on the circumstances, the missing document may need to be filed with a properly sworn supplementary affidavit rather than simply attached later.

### 6. Can a wrong date be corrected by handwriting over it?

A sworn affidavit should not be altered informally. Before witnessing, a clean replacement can usually be prepared. After witnessing, a new or supplementary affidavit may be required.

### 7. Does every name need to match exactly?

Material differences between the will, death certificate and probate documents should be identified and explained. The court needs to be satisfied that every reference concerns the same deceased person and the correct executor.

### 8. Does an affidavit error mean probate will be refused?

Not necessarily. Many errors can be corrected through replacement documents or further affidavit evidence. However, each correction can delay the grant, so careful checking before filing is essential.