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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22625
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I have been asked to countersign as correct several affidavits,

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I have been asked to countersign as correct several affidavits, regarding a will going to probate, but several facts in these affidavits (which have been signed by a police officer and a representative of the coroners court are incorrect). I am not comfortable about signing these forms which contain errors of fact and will be lodged in the high court, but I am being pressured by my lawyer to do so. If I do not sign them they are planning to exclude me as being capable of being an executor in my sons will as requested. Should I sign them or not. This would leave his partner as the sole executor and she is already trying to alter the outcomes of the will to get a greater share of the estate. thanks.

Chris The Lawyer :

Hi and welcome. My first response will follow shortly. Please feel free to follow up if anything is not clear.

Chris The Lawyer :

I have practised in the High Court since 1978 and never heard of countersigning affidavits already signed by others. You should either sign as a co deponent, or swear a separate affidavit

Chris The Lawyer :

Having said this, if you named as the executor of the will, why is there a risk you will be removed?

Chris The Lawyer :

Has someone challenged the validity of the will?

Chris The Lawyer :

You should not sign anything with errors as you are swearing this is the truth

Customer:

I am actually writing on behalf of my sister who is too upset at this time to do anything and confused about what the lawyer is saying. I hope that is ok I am just trying to get some things clarified so that we can work out how to proceed. So My nephew Michael committed suicide and since the death certificate has been issued the court has requested that affidavits from the police and coroners office be signed and forwarded to the insurance company regarding the life insurance. This has been done and now she has been asked to sign her affidavit to present to court for probate which states that those affidavits are correct - even though they contain errors. She has been told that if the forms are not signed saying that she agrees with the affidavits being correct then the lawyer has said that he will lodge the forms without her being named as an executor. My Nephews partner is named as the other executor and she is was willed 50% of the estate but has stated through her lawyer that she is determined to get all of the estate. The other 50% was to be divided between his parents. I do not understand under what grounds she can be deemed unfit to fulfil the role of executor. The lawyers have not explained.

Chris The Lawyer :

If she doesnt sign then she can be excluded but what she can do is sign the affidavit for probate, but stating specifically she does not agree with the issues you mention. There is nothing wrong with her doing this. But the lawyer must listen to her and take her instructions as she cannot swear something she does not believe is true. However if she intends challenging the will then she will need a separate lawyer anyway, form the estate lawyer

Customer:

we are trying to work out if it more beneficial for her to be an executor or to actually dispute the will, but she doesn't actually want to change the dispersment of the will but his partner who is the other executor and has already signed the papers wants to dispute the will and claim a greater or whole share, even though our initial advice was that she would not be entitled to more, but less, under family law as they did not have children together. If she is sole executor can she then manipulate the will to get a greater share with no one to stop her?

Chris The Lawyer :

Your sister is better to be there to keep an eye on her in my view

Customer:

Yes that is what I thought as well. She will get her own lawyer but we are having trouble working out who to get as already the lawyers in that area all seem to be friends and are not listening to her or respecting the wording of the will. Do you have any suggestions about how to find a good lawyer that will represent her interests?

Chris The Lawyer :

You may need to go out of town-perhaps over to Dunedin?

Customer:

She is in Dunedin, where would be the next closest place do you think?

Chris The Lawyer :

Oh-perhaps Christchurch? Or even Wellington?

Chris The Lawyer :

Most of the work can be done by phone and email these days.

Customer:

ok thanks I will pass all that on you have been very helpful cheers

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