Fact Sheet 5 /
Probate files
Probate is the official proving of a will or the issuing of the legal document to the executor or other administrator to give them authority to deal with a deceased person’s estate. Probate files contain all the legal documentation required for the granting of probate i.e. the legal administration of an estate. Therefore, most files contain a copy of the deceased person’s will if one had been discovered. However, not everyone who made a will has a probate file. The value of the estate appears to be the determining factor in whether wills go to probate. The amount which determined whether a will or intestate estate must go through the court varied from time to time, but may be found in the relevant legislation (i.e. the various Public Trust and Administration acts).
In New Zealand the Supreme/High Court has exclusive jurisdiction in the matters of probate and administration (although until c1908, the former District Courts also administered probates). Those wills which were probated were usually lodged in the High Court nearest to where the deceased resided. However, a person’s will may be registered in more than one court. If a person died without making a will, then there may be a file of Letters of Administration, containing the legal documentation required for the administration of the deceased person’s estate.
Some explanations of terminology used in the Probating of a Will
Will
A will is a statement made by a person in their lifetime of their intentions as to how their property is to be dealt with after their death. The general rule is that anyone (except an infant or a person of unsound mind) may make a will. A will must be in the form of a written document although any written document will suffice, even a mere letter. It must be signed by the testator in the presence of at least two witnesses, who must themselves sign the will in the testator’s presence. If anyone to whom the testator has left property acts as witness, they will not be entitled to benefit under the will. The only exceptions to these requirements are for soldiers, sailors and airmen while members of New Zealand Armed Forces and seamen at sea.
Executor/s
Personal representatives who are appointed by a testator in their will are called executors. The function of the executor is to administer the testator’s property and to carry out the provisions of their will.
Administrators
An administrator is a person appointed by the Court to administer the property of a person in three main cases:
Where that person has:
· died without leaving a valid will i.e. intestate, in which case the personal representatives derive their powers from the grant of letters of administration.
· Failed to appoint an executor under their will.
· Appointed an executor, but the appointment has failed for some reason.
Probate and letters of administration
Probate granted to an executor is merely the official recognition by the Court of the appointment made by the testator, the executor has not actually been appointed by the Court. The granting of Letters of Administration is the actual appointment of an administrator by the Court.
Although an executor can enter their duties immediately after the death of the testator, their right to dispose of the estate is not fully established until they have obtained a grant of probate of the will from the High Court.
In New Zealand, to obtain the usual grant of probate an executor must file in the High Court:
1. An ex parte notice of application for Probate,
2. An affadavit or affadavits, and
3. The will
Public Trust wills
Public Trust wills do generate a court file. In general, until c1950 these were all filed in the Wellington High Court and were subsequently transferred to Archives New Zealand, Wellington. However, other courts should be checked where a check of the Archives New Zealand, Wellington holdings does not reveal the probate. After 1950, Public Trust wills were proved in individual High Courts, so from this date they can be found amongst probate files held at each office of Archives New Zealand.
Maori wills
The Maori Affairs Amendment Act 1967 transferred the power to grant probate and letter of administration from the Maori Land Court to the Supreme [High] Court. The Supreme Court prior to 1894 had this jurisdiction. Consequently records relating to Maori wills from 1894 to 1967 may be found at the Maori Land Court.
What type of information can be found in a probate file?
Probate files can be particularly valuable for genealogical research - they give information about deceased persons, including the exact date of death.
A probate file should contain the following information:
· name of testator or intestate person
· place of residence
· occupation
· exact date of death
· date of administration and names of administrators
· when probate was filed
· net value of property, and other details relating to the estate
· the will
· name/s of beneficiaries, and their relation to the deceased
· amount of share of the beneficiary/ies
· name of solicitor
· payment of duty details
Access
All of Archives New Zealand, Auckland Office probates are listed on our online finding and Archway. There are no restrictions on the viewing of probate files.
Where a High Court has not yet transferred some of their probate holdings to Archives New Zealand it is necessary to apply to the particular court for a copy of an individual’s probate file. Probate files are not transferred to Archives New Zealand until they are at least 10 years old.
Probate records held in the Auckland Regional Office of Archives New Zealand
We hold probate files from High Courts in the Auckland/Northland/Waikato/Gisborne regions.
Auckland Probates / Series / DatesBBAE / 1568 / Indexed / 1845-1886
BBAE / 1569 / Indexed / 1887-1926
BBAE / 1570 / Indexed / 1927-1997
Hamilton Probates
BBAE / 1591 / Indexed / 1904-1909
BCDG / 4420 / Indexed / 1910-1953
BCDG / 4421 / Indexed / 1954-1992
Whangarei Probates
BBNY / 10441 / Indexed / 1937-1938
BBNY / 10297 / Indexed / 1939-1960
BBNY / 10440 / Indexed / 1960-1994
Rotorua Probates
BAZY / 4992 / Indexed / 1973-1993
Gisborne Probates
BAJI / 1594 / Indexed / 1879-1969
BAJI / 1595 / Indexed / 1970-1991
Probate related files
BBAE / 1587 Intestate files / Indexed / 1849-1886
BBAE / 1588 Register of grant of letters of administration / Indexed / 1845-1886
BBAE / 1590 Intestate orders to pay / Indexed / 1849-1868
BBAE / 1589 Unregistered probates / Indexed / 1869-1912
BBAE / 1952 Receiver of intestate estates / Indexed / 1842-1867
Prior to 1904 all probates for the greater Auckland Region went through the Auckland High Court. Gradually other High Courts were established in Hamilton and Whangarei etc. Probates from these areas then went through the local High Court. However in the first few years of establishment of a new High Court there was often a cross over as to where the probate was processed so both court indexes should be checked.
July 2009 1/3