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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22322
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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What is wrong with using an affidavit of death signed by the

Customer Question

What is wrong with using an affidavit of death signed by the major benificery of the WILL rather than using a Formal death Certificate signed by a GP when attempting probate.
Submitted: 11 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 11 months ago.

Is this a New Zealand law question?

Customer: replied 11 months ago.
Expert:  Chris The Lawyer replied 11 months ago.

The application for probate of an estate is always rather technical and not always easy to understand. The High Court forms require that the affidavit in support of the application for probate can use a number of different options, which are specified in the precedents as Statement A, “I was present when the deceased died”, Statement B “I attended the deceased’s funeral”, Statement C “I saw the deceased’s dead body” or Statement D “the deceased is the person named... Insert full name... In the death certificate that is attached and marked “A”.

You can use any of these options in the application in support of probate. This information is taken from the latest seminar on the issue.

Expert:  Chris The Lawyer replied 11 months ago.

This series of alternatives are a paragraph in the affidavit in support, but could be in an affidavit on its own

Customer: replied 11 months ago.
1) And is doesn't matter that the major benificery signs the affidavit of death in support of Probate in which only the Probate relies on when he (the major benificery) is to gain about NZ1Mil.?
2) Where is the death certificate signed by a GP in Probate issuing matters?
Expert:  Chris The Lawyer replied 11 months ago.

The amount is not considered as this is not mentioned in the forms. The death certificate is just one of four options. Does this help

Customer: replied 11 months ago.
What is your answer that the Major Benificey signs the Affidivat of Death in support of probate.
Isn't that a conflict of interest & isn't there a rule against that?
Expert:  Chris The Lawyer replied 11 months ago.

There are no restrictions on who can give the evidence of death. It is a routine part of the application. Anyone with the knowledge can give that evidence.

Expert:  Chris The Lawyer replied 11 months ago.

It isnt a conflict of interest.

Customer: replied 11 months ago.
The WILLS Act was produced in 1857 in the UK & the NZ government has been using it since those early times.
After Nov*****the courts are allowed to interpurt the Words in a WILL is Different that that before Nov 2007?What is the difference between the before Nov 2007 & after Nov 2007?
Is this an example ... WILLs that do not have the formal words " I give this my WILL freely Without influnce .. etc etc .. " compared to not stating these points in the WILL ... is the normal Courts position .. It is unclear or not given freely .... when not stated?
Expert:  Chris The Lawyer replied 11 months ago.

The requirements for an application for probate are primarily set out in the High Court rules. Although the new Wills Act has changed some of the formal requirements to bring the wording up to date, the primary requirement for a will is that the intention of the will maker must be clear. There is no requirement to have the words which you suggest, under the old or the new versions of the act.

Expert:  Chris The Lawyer replied 11 months ago.

The primary requirements for a will are in section 11 which says-

11 Requirements for validity of wills

  • (1)A will must be in writing.

    (2)A will must be signed and witnessed as described in subsections (3) and (4).

    (3)The will-maker must—

    • (a)sign the document; or

    • (b)direct another person to sign the document on his or her behalf in his or her presence.

    (4)At least 2 witnesses must—

    • (a)be together in the will-maker's presence when the will-maker—

      • (i)complies with subsection (3); or

      • (ii)acknowledges that—

        • (A)he or she signed the document earlier and that the signature on the document is his or her own; or

        • (B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

    • (b)each sign the document in the will-maker's presence.

    (5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker's presence, the following:

    • (a)that he or she was present with the other witnesses when the will-maker—

      • (i)signed the document; or

      • (ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

      • (iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

      • (iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

    • (b)that he or she signed the document in the will-maker's presence.

    (6)No particular form of words is required for the purposes of subsection (5).

Customer: replied 11 months ago.
You said a Will Must" .....
and then my computer lost your words.
Please try again?Thank you
Expert:  Chris The Lawyer replied 11 months ago.

Its all in the above post-I suggest refresh the view and it should show the rest of the section, or i can repost

Customer: replied 11 months ago.
What sailient points are necessary to be written in the WILL or put additionally for proof is testomany capacity, signing on ones own free will, Unconscionable transaction, undue influence ?And the Witnesses signing that they each signed the Will in each others presence & in the presence of the testator all at the same time?
Expert:  Chris The Lawyer replied 11 months ago.

You don't need to say anything in the will about testamentary capacity. But the witnessing is set out in section 11, and is necessary. If you want to challenge the will you must file a caveat to stop the grant of probate and require it is proved in solemn form.

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