My aunt promised me her jewellery on her death, how do I get a copy of her will? Ex-Files with Jeremy Sutton

My aunt promised me her jewellery when she died. Photo / Amy Humphries, Unsplash

OPINION

Q: My aunt died two years ago. While she was alive, we had a close relationship. She had no children of her own. She told me she would leave me all her jewellery when she passed away. I have not received anything nor heard from the executors of her estate. I would like to see a copy of her will. I want to know whether I was included as a beneficiary. If not, shouldn’t I have received the jewellery anyway? She promised it to me. I am concerned the jewellery has ended up in the wrong hands!

Obtaining a copy of your aunt’s will.

A: If your aunt had a valid will and her estate exceeded $15,000, there should be a grant of probate held with the High Court of New Zealand. A copy of the will is annexed to this document.

If your aunt died intestate (without a will), then there may be a document called letters of administration, again held with the High Court. Under this document, someone will be appointed administrator of your aunt’s estate, and her assets would be distributed according to the rules of intestacy set out in the legislation. These rules specify which kin are to receive the estate and in what shares.

You can contact the High Court and request that they undertake a search in your aunt’s name to obtain either a copy of the grant of probate or letters of administration. You will need to pay a fee of $30. This is a relatively simple process, and anyone can apply. It is possible that no application may have been made yet (although you would expect so after two years).

If your aunt’s assets did not exceed $15,000 then it will be trickier for you to obtain a copy of the will. If you know the name of the lawyer your aunt used, then you could contact them to request a copy. Otherwise, you could publish a “will notice” in the Law Society newsletter, which is distributed to lawyers throughout New Zealand weekly to try and locate the will. However, even if a will is located, you are unlikely to be provided with a copy unless the executors named in the will consent to this and you are named as a beneficiary.

Usually the executor/s of an estate will not distribute the assets to the beneficiaries for at least six months after probate has been obtained (12 months is recommended). This waiting period is to allow time for anyone who wishes to bring a claim against the estate to do so and for any debts of the estate to be settled.

The executors of a will must distribute a deceased person’s estate in accordance with the terms of the will. It is not up to them to rewrite the will, regardless of whether they agree with the contents of the will or not.

There is usually a lawyer who oversees the administration of an estate who will also keep a watchful eye on how the assets are being distributed. This should provide some comfort that if your aunt did state in her will that you were to receive her jewellery that it will be distributed to you.

No provision in the will

You have managed to get a copy of the will but there is no provision for you to receive anything. Could you challenge the will based on the promises your aunt made that you would receive the jewellery?

It would be uncertain whether you could successfully claim against your aunt’s estate based on the promises alone that she would bequeath to you her jewellery. The “testamentary promises” legislation requires not only a promise by the deceased but also some quid pro quo: you would need to show that you provided services for her or performed work for her.

Although “services” has been interpreted by the courts broadly to include companionship, affection, and emotional support, it would be uncertain whether having a close relationship alone would be sufficient. You would need to be able to show that you went beyond what would normally be expected of a niece/nephew relationship.

As such promises are uncertain, court proceedings could be a disproportionate expense.

Only jewellery of significant monetary or sentimental value will make a claim worthwhile.