646
THE NEW ZEALAND GAZETTE.
[No. 18

519. If there be no attestation clause to a will or codicil presented for probate, or if the attestation clause thereto be insufficient, the applicant must file an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove the due execution of such will or codicil. Such affidavit shall be in the Form No. 35 in the Appendix hereto.

520. If the will has been executed by the testator by signing his name in the attestation or testimonium clause thereof, meaning and intending the same for his final signature to his will, the applicant for probate must file an affidavit from at least one of the subscribing witnesses, if they or either of them shall be living, in the Form No. 35A in the Appendix hereto.

521. If the will has been signed by the testator by mark or by some other person by direction of the testator, or if it appears that the testator was blind or was an illiterate or ignorant person, and it is not certified in the attestation clause that the will was read over to and understood by the testator before the execution thereof, the applicant for probate must show by affidavit in the Form No. 35B in the Schedule hereto, from at least one of the subscribing witnesses, if they or either of them be living, that it was read over to the testator before its execution or that the testator had at such time knowledge of its contents.

522. If the will is signed by mark by reason of the bodily weakness of a testator who is not illiterate, the applicant for probate must show by affidavit of at least one of the subscribing witnesses, if they or either of them be living, that the testator was in full possession of his mental faculties at the time of its execution, and that he read it, or that it was read over to him, or that he had knowledge of its contents before its execution.

523. In any of the cases mentioned in Rules Nos. 519, 520, 521, and 522, if both the subscribing witnesses are dead, or if from other circumstances an affidavit cannot be obtained from either of them, resort must be had to other persons (if any) who may have been present at the execution of the will; but if no affidavit of any such person can be obtained, evidence on affidavit must be procured of that fact, and, when the will has been signed by the testator, of his handwriting, and of the handwriting of the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of the due execution of the will.

524. Forasmuch as interlineations and alterations are invalid unless they existed in the will at the time of its execution, or, if made afterwards, unless they have been executed and attested in the mode required by the statute, or unless they have been rendered valid by the re-execution of the will or by the subsequent execution of a codicil thereto, such interlineations and alterations must not form part of the probate except by order of the Court, upon proof as prescribed by the next rule.

525. When interlineations or alterations appear in the will (unless duly executed or recited in or otherwise identified by the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution must be filed, unless the alterations are merely verbal, or when they are of but small importance and are evidenced by the initials of the attesting witnesses.

526. Forasmuch as erasures and obliterations do not prevail unless proved to have existed in the will at the time of its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid by re-execution of the will, or by the subsequent execution of a codicil thereto, if no satisfactory evidence can be adduced as to the time when such erasures and obliterations were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate.

527. In every case of words having been erased or obliterated which might have been of importance, an affidavit is required.

528. For the purposes of Rules 525, 526, and 527 the forms Nos. 35C and 35D in the Appendix hereto shall be used as precedents, and shall be followed as nearly as the circumstances of the case will permit.

529. If a will contains a reference to any deed, paper, memorandum, or other document of such a nature as to raise a question as to whether it ought or ought not to form a constituent part of the will, the production of such deed, paper, memorandum, or other document, verified by affidavit, is required with a view to ascertain whether it is entitled to probate; and, if not produced, its non-production must be accounted for by affidavit.

530. Forasmuch as no deed, paper, memorandum, or other document can form part of a will unless it was in existence at the time when the will was executed, the affidavit or affidavits required by the last rule must show the time when any such deed, paper, memorandum, or other document came into existence.

531. The above rules respecting wills apply also to codicils. They apply also to applications for the grant of letters of administration with the will annexed as well as to applications for probate.

531A. No probate or letters of administration with the will annexed shall issue out of the Registrar’s office until after the lapse of seven days from the death of the deceased unless under the direction of the Judge.

531B. In every case where probate or administration is for the first time applied for after the lapse of one year from the death of the deceased, the reason of the delay must be shown by affidavit.

531C. Where letters of administration are applied for by one or some of the next-of-kin only, there being another or other next-of-kin equally entitled thereto, proof must be given by affidavit that notice of such application has been given to such next-of-kin, or the consent in writing of such next-of-kin duly verified by affidavit must be filed. The Court may, however, in its discretion, dispense with such notice to or consent of such of the next-of-kin as are at the time of the application beyond the jurisdiction of the Court.

531D. The affidavit of administrators and of administrators with the will annexed is to be so worded as to clear off all persons having a prior right to the grant, and the affidavit is to set forth, where the fact is so, that the party applying is the only next-of-kin or one of the next-of-kin of the deceased. The affidavit shall be in one of the Forms Nos. 37, 38, and 38A in the Appendix hereto, with such necessary modifications only as the case requires.

531E. In the case of a person residing out of New Zealand administration or administration with the will annexed may be granted to his attorney acting under a power of attorney.

531F. The bond to be executed pursuant to the provisions of the 21st and 22nd sections of “The Administration Act, 1908,” shall be in the Form No. 42 in the First Schedule to the Code of Civil Procedure in “The Judicature Act, 1908.” If sureties are dispensed with by the Court, or the security of any incorporated company or guarantee society approved by the Governor in Council is accepted, the necessary modifications shall be made in such form.

531G. The Registrars are to take care, so far as possible, that the sureties to administration bonds are responsible persons; and, unless otherwise satisfied as to the responsibility of such sureties, the Registrars shall require such sureties to justify in the Form No. 38B in the Appendix hereto.

531H. No letters of administration shall issue out of the office of the Registrar until after the lapse of fourteen days from the death of the deceased unless under the direction of the Judge.

531I. The proceedings in order to obtain letters of administration with the will annexed, in case the executor named in a will shall not, or, if more than one executor is named in a will, no one of the executors named in a will shall, apply for probate thereof within three calendar months after the death of the deceased, are regulated by “The Administration Act, 1908,” and “The Public Trust Office Act, 1908.”

531J. If there is a will, but no executor has been appointed thereby, or if the executor or executors thereby appointed shall have died in the lifetime of the testator, or shall renounce probate of the will, or shall be incompetent by reason of his or their minority, lunacy, residence out of the jurisdiction, or other disability, letters of administration with the will of the testator annexed may be granted to such person or persons as under the practice of the Probate, Divorce, and Admiralty Division of the High Court of Justice in England would be entitled in similar circumstances in England.

Caveats.

531K. Any caveat lodged against the grant of probate of a will or of letters of administration of the estate of any deceased person pursuant to the provisions of section 27 of “The Administration Act, 1908,” shall comply with the provisions of that section, and shall be lodged with the Registrar at the registry at which application for such grant is required to be made by Rule 517 of these rules.

531L. If any such caveat shall be lodged, the further proceedings in reference thereto shall be those directed by section 28 of “The Administration Act, 1908.”

531M. No probate or letters of administration shall be sealed after the expiration of one calendar month from the day on which the application was granted. After such period a fresh application must be made.

531N. If any person deceased shall have left behind him property of a perishable nature, whereof the value may be greatly diminished in the interval before letters of administration can be duly granted, the Judge may upon application to him for that purpose make an order authorising the sale of such property by some person therein named, and may direct the proceeds to be paid to the Registrar or Deputy Registrar, as the case may be, on account of the estate of the deceased.