New Zealand Probate Records
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Revision as of 20:55, 15 February 2008
Probate records are court records that describe the distribution of a person's estate after he or she dies. Information in the records may include the name of testator, death date, occupation, names of heirs, guardians and executor, relationships, residences, addresses of property owned, an inventory of the estate (including trade and household goods), and names of witnesses.
Even though probate records were not created for every person who died, they are very helpful for research because civil authorities began recording probate actions earlier than they recorded birth and death records.
While probate records are one of the most accurate sources of genealogical evidence, they must be used with some caution. For example, they may omit the names of deceased family members or those who have previously received an inheritance. The spouse mentioned in a will may not be the parent of the children mentioned, or relationships noted in the will may not have the same meaning as they do today.
Laws and Customs
Anyone of legal age and sound mind, who owned property (real or personal) in New Zealand had the right to leave a will. The probate process began with a testator executing a will, followed by witnesses attesting and subscribing the will. After the death of a testator, the will was probated by the executor, usually at the court nearest the deceased’s place of residence.
Some wills were not probated in a court. If the estate was small and there were no disagreements among the heirs, it was not necessary to probate the will. Many such wills are found only in family papers or in the private files of the lawyer who drew up the document.
An individual who left a will is said to have died testate. Someone who did not leave a will (or a valid will) died intestate. The disposition of an intestate person’s estate is found in letters of administration.
A will disposing of property only in a foreign country could not be probated in New Zealand. In this instance, it is necessary to determine the deceased’s country of origin or the area where property was owned to access appropriate probate documents.
Primary records of genealogical value created in the probate process include wills (those disposing of land or real property), testaments (those disposing of personal property), letters of administration and probate register books. Often a will and testament are included together in one document.
General Historical Background
The first residents of New Zealand were Maori. Because the Maori Land Court had jurisdiction to probate wills and administrations for the Maori people, the original records dealing with their estates are found at:
Maori Trust Office
PO Box 3943
Prior to 16 June 1842, New Zealand wills were probated in New South Wales, Australia. These early original wills are held by the Supreme Court of New South Wales. To access them, contact:
Supreme Court of New South Wales
Law Courts Building, 5th Floor
Sydney, New South Wales 2000
The pre-1842 wills have been indexed in the New South Wales Probate Index and are available in many repositories in New Zealand. It would be necessary to contact individual repositories to determine if they hold copies of the indexes. For names and addresses of repositories, see the "Archives and Libraries" section of this outline. While the indexes give only the name of the deceased, residence and death date, the residence would be designated as New Zealand and would be valuable in locating early wills in New Zealand.
From 16 June 1842 until 1980, probate records were kept by the Supreme Court. In 1980 the name of the Supreme Court was changed to the High Court. Most wills were probated in the court nearest a person’s place of residence. More recent wills are held in the local probate courts so it is important to search the records of all probate courts in all localities where the individual had property. Archives New Zealand now holds the early wills from 16 June 1842 up to the 1970s and 1980s
A chart showing the location of wills and administrations for each of the High Courts as of 1 August 1995 is provided in Bromell, Anne. Tracing family history in New Zealand. Auckland, New Zealand: Godwit Publishing Ltd., 1996. Pg. 90. This chart can be valuable in locating the whereabouts of the wills of your ancestors.
Types of Probate Records
Will.Technically, a will conveys real (immovable) property to heirs after an individual’s death. A registered will is an official copy made by a court clerk.
Testament. A testament conveys personal (moveable) property to heirs. The use of the word ‘will’ eventually referred to both a will and a testament combined in one document.
Codicil. This is a signed, witnessed addition to a will appended sometime after the will was originally written and signed.
Administration, Letters of Administration or Admon. This is a document appointing someone to supervise the distribution of the estate of a deceased person who died ‘intestate’ (without leaving a will). This document gives very little information but may contain some useful clues. The administrator is usually a relative of the deceased.
Admon with Will. This is a document which grants administration of an estate to someone besides the executor named in the will when the executor has since died, is unwilling, or is unable to act as executor. A copy of the will is attached.
Inventory. An inventory lists belongings and their values, including such items as household goods, tools, and personal items. Occupations are often mentioned.
Probate and Testamentary Registers. These are books which list the wills and administrations handled by a court. They give the name of the deceased, date of death, date of probate, lists of documents filed for the disposition of the case, executors and administrators and bonds posted.
Bond. A bond is a written guarantee that a person will faithfully perform the tasks assigned to him by a probate court. The executors posted testamentary bonds, the administrator posted administration bonds, and the guardian of a minor child posted a bond of tuition or curation.
Death Duty Registers
When wills and letters of administration were probated, a duty was imposed. The records listed below identify those duties and the information needed to access them. These records can often be used as indexes to finding original probate records.
1867-1876 - Succession, Legacy and Residuary Duty Registers. These registers were the result of the Stamp Duties Act of 1866. They record duties payable and paid to the District Commissioners of Stamp Duties. Three different registers were created at the district level, one for each different type of duty. These registers can be accessed in each district. They provide name and date of death. While these records were created at the district level, the Stamp Duties Department in Wellington recorded in central registers the succession, legacy and residuary duties paid. These central registers are known as Colonial Registers. The Archives New Zealand holds the complete set for 1867-1876. For the address of Archives New Zealand, see the "Archives and Libraries" section of this outline.
1876-1962 - Testamentary Registers. The Stamp Act of 1875 required a statement to be filed with the Commissioners of Stamp Duties identifying personal property belonging to the deceased. The information filed in this statement was used to impose duties on the heirs of an estate. To use these testamentary registers the district of residence and date of death should be known. The original testamentary registers were kept at the district level with copies being sent to the head office. The registers include the following genealogically related information: name of testator, residence, occupation, date of death, value of property, abstract of the will, beneficiaries and relationships, as well as duty paid. Other information is available which holds little direct genealogical value. These registers are available at the National Archives. The registers from 1876-1933 are available at the Family History Library. (FHL films 1515115-1515123.) For an address see the "Archives and Libraries" section of this outline.
1896-1913 - Deeds of Gift Register. The Stamp Acts Amendment Act of 1895 created a duty on gifts. The Inland Revenue Department created the Deeds of Gift Register. The register gives donor, residence, nature and value of property and duty imposed. From 1905 on, the names of trustees or beneficiaries and their residences are sometimes included. The registers for the above time period are held at Archives New Zealand. For an address, see the "Archives and Libraries" section of this outline.
1911-1964 - Native Succession Order Registers. The Death Duties Act of 1909 required the Maori Land Court or Native Appellate Court to send copies of all succession orders for property to the Commissioners of Stamps. This office would then impose and collect a duty before the succession became legal. These records show names of deceased, successor, property description, value, duty and a reference to the Maori Land Court. The registers are at Archives New Zealand. For an address, see the "Archives and Libraries" section of this outline.
1872-1957 - Public Trustee. Under certain circumstances, a will or administration could be placed in the Public Trust Office to be probated. In these instances the Public Trustee was appointed as executor or administrator. Most often these were administrations. Executors could appoint the Public Trustee sole executor (when the executor was absent from New Zealand or was not of full age or full mental capacity or was under any other disability.) These were all abstracted in the New Zealand Gazette and can be accessed in many archives and libraries throughout New Zealand. Indexes from 1866-1900 are available at the Family History Library. (FHL microfiche 6344551.)
Availability of Probate Records
The Family History Library has a good collection of New Zealand probate records including wills, letters of administration, testamentary registers, and probate register books. Records can be found in the Family History Library Catalog under:
NEW ZEALAND - PROBATE RECORDS
NEW ZEALAND - [TOWN] - PROBATE RECORDS
The New Zealand Society of Genealogists has indexed the wills and administrations for all of New Zealand. These indexes can be purchased from the Society or accessed at libraries and archives throughout New Zealand, Australia and the British Isles. For the address of the New Zealand Society of Genealogists, see the "Societies" section of this outline..