PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA

Probate is the legal certification of the validity of the Will; or an official copy of a Will that is legally certified as genuine and given to the executors. Letters of administration is an official court order appointing someone as the administrator of a deceased person’s estate where no valid Will exists. An administrator, however, derives his powers to act from the grant of letters of administration, and where the letters of administration is not granted, an administrator cannot act.

While a probate confirms the representation of an executor, a letter of administration confers the representation of an administrator. It should be noted that, where a testator states that he wants the customary law of Yoruba land to govern his estate, the court will look at the nature of his property to determine if the customary law of Yoruba land can govern it or not. GRANT OF PROBATE OR ADMINISTRATION This is usually granted upon application made to the probate registrar by an interested person either personally or through his legal practitioner – Order 55 Rule 50 and 51, Lagos High Court Civil Procedure Rules. All applications for probate are made to the Probate Registrar – Order 55 Rule 1, Lagos High Court Civil Procedure Rules; and section 20 of the Administration of Estates Law of Lagos State, in the State High Court. Where the application is made by a legal practitioner, the legal practitioner must disclose the address of his business place in the application. TIME FOR GRANT Probate or administration will not be granted until after seven (7) days of the death of the testator – Order 55 Rule 1(3), Lagos High Court Civil Procedure Rules GRANT There are mainly three (3) types of grant viz – 1.      Grant of probate with Will – This is where the deceased dies testate, leaving a valid Will with the executors appointed in the Will to carry out the wishes of the testator. 2.      Grant of probate without appointing executors – This is where the deceased person dies testate but without appointing executors; or the appointed executors are late; or the executors are infant; or the executors have renounced probate. 3.      Grant of administration without Will – This is where the deceased person died intestate (without a Will) and so could not appoint executors. Also, a grant may either be general or limited. A general grant is granted to cover all assets in the estate and for all purposes without time limit. Whilst, a limited grant is one that is limited as to time; limited to part of the estate only; and limited as to a purpose. PERSONS ENTITLED TO GRANT OF PROBATE Order 55 Rule 25, Lagos High Court Civil Procedure Rules provides for such persons in an order of priority namely – 1.      The executor; 2.      Any residuary legatee holding in trust for any other person (that is, where the residuary estate is subject to a trust); 3.      Any residuary legatee or devisee for life; 4.      The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency; 5.      Any specific legatee or devisee or creditor or their personal representative; 6.      Any specific legatee or devisee entitled on the happening of any contingency, or next-of-kin. PROCEDURE FOR GRANT OF PROBATE This depends on whether it is – 1.      Non-contentious grant; or 2.      Contentious grant. NON-CONTENTIOUS CASES IN PROBATE AND ADMINISTRATION This has to do with – 1.      All business of a non-contentious nature in matters of testacy and intestacy which are not proceedings in any court; and 2.      Grant of probate and administration by the High Court where contentious cases have been terminated. PROCEDURE TO OBTAIN PROBATE AND LETTERS OF ADMINISTRATION IN NON-CONTENTIOUS CASES

The procedure (where there is a Will) entails –

1.      Discovery of the Will – This is the first step which depends on whether the testator has made a Will to the knowledge of his solicitor. The search may be conducted at the probate registry to ascertain whether the testator’s Will is deposited at the probate registry. The Solicitor is to apply to the Probate Registrar on the following –

(i)                 The death of the testator accompanied with a death certificate as a proof.

(ii)               The fact that the testator made a Will and deposited it at the registry stating the particulars of the Will (that is, when it was deposited, etc).

(iii)             The names of the persons that are interest or likely to be interested in the estates of the testator.

2.      Reading of the Will – The Probate Registrar is to appoint a date, time and place when the Will would be read to these persons. When those interested in the estate appears on the fixed day, time and venue, the Registrar brings out the Will in their presence, breaks the sealed wax on it and reads the Will and makes a record of the proceedings of the day – Ajibaiye v. Ajibaiye (2007) All FWLR (Pt. 359) 1321; Dan-jumbo v. Dan-Jumbo (1999) 7 SCNJ 112.

3.      Application for probate – This is done by the executors to the Will by filling and completing the relevant forms and submitting certain documents to accompany the application to the Probate Registrar.

The basic forms/documents required to process probate are as follows –

a)      An application letter to the Probate Registrar in that jurisdiction which shall indicate –

(i)                 Identity of the testator by stating his name, date of birth, address, profession, marital status, names of spouse and children;

(ii)               The date and place of the death of the testator;

(iii)             That the testator was resident within the jurisdiction of the court shortly before his death;

(iv)             That the testator was found to have made a Will; and

(v)               Name of executors, if any, in the Will.

b)      A death certificate of the testator (this is mainly a death certificate issued by the National Population Commission in Form D. 2).

c)      A declaration on Oath by executors to the effect that they will faithfully administer the estate of the testator and render accounts according to the Will of the testator.

d)     An Oath or justification by sureties on behalf of the applicant in a specific penal sum to guarantee his administration of the estate.

e)      A duly completed bond by the applicants to pay the debts and liabilities of the testator’s estate, to distribute the estate and also make inventory.

f)       An authorisation by way of a bank certificate issued by the Probate Registrar to a personal representative or applicant to inquire into the details of the testator’s bank account, if any. This is the only method through which an applicant can know the contents and details of a testator’s bank account.

g)      A duly completed inventory specifically listing the properties of the testator.

h)      A sworn affidavit or attesting witnesses of the Will stating that they are witnesses to the executed Will, and if the testator was blind or an illiterate, that they were present during the interpretation of the contents of the Will to the testator.

i)        Passport photographs of the applicants and witnesses to the Will.

4.      Granting of probate – Upon satisfaction with the requirements, the Probate Registrar shall grant probate to the applicants with the Will attached to the probate or he shall grant the letter of administration.

CONTENTIOUS CASES IN PROBATE AND ADMINISTRATION

This has to do with –

1.      Disputes that pertain to what document or documents should be admitted to probate;

2.      Disputes as to who is entitled take out a grant – Emmanuel v. Doherty (2009) 1 NWLR (Pt. 1123) 505; and

3.      Disputes as to whether a grant should be revoked – Igunbor v. Afolabi (2001) All FWLR (Pt. 59) 1284.

PROCEDURE TO OBTAIN PROBATE AND LETTERS OF ADMINISTRATION IN CONTENTIOUS CASES

The procedure (where the grant of probate is contested) entails –

1.      Application for probate – This must have been made by a person who is either challenging the validity of the Will, or resisting the appointment of a person as executor, or seeking the revocation of the grant of probate. Such a person would object to the grant of probate.

2.      Caveat – A person would usually express his opposition to the grant of probate by filing a caveat. Where a caveat is filed, the Probate Registrar shall refer the proof of the Will to the court. The caveat is in Probate Form 3 or Form 4 Lagos High Court Civil Procedure Rules. Probate is usually not granted until the expiration of three (3) months which is the life span of a caveat – Order 55 Rule 71, Lagos High Court Civil Procedure Rules. No caveat shall be effective against grant of probate on the day on which the caveat is entered – Order 55 Rule 71(7), Lagos High Court Civil Procedure Rules. The Probate Registrar shall bring to the notice of an applicant for probate the existence of any caveat, and shall not seal any probate if he has knowledge of any effective caveat to the application for probate. And to ensure that no probate is sealed in error, the Probate Registrar shall maintain an index of caveats.

A caveat shall cease to be effective under any of the following –

a)      Where the caveator (a person who files a caveat) fails to enter appearance to a warning or citation within the specified period, and the citor (the person warning) files an affidavit to that effect – Order 55 Rule 71(12), Lagos High Court Civil Procedure Rules;

b)      After three (3) months of its filing unless further caveat or caveats are entered – Order 55 Rule 71(5)(b), Lagos High Court Civil Procedure Rules; and

c)      Caveat filed by a person who had knowledge of probate action and still files caveat against grant after probate action – Order 55 Rule 71(14)(c), Lagos High Court Civil Procedure Rules.

Unless the Probate Registrar grants the leave for further caveat, no further caveat shall be entered where the previous one ceases to have effect under (a) and (c) above – Order 55 Rule 71(15), Lagos High Court Civil Procedure Rules.

3.      Citation/Warnings – The applicant for grant of probate may cite the caveator by serving appropriate warning called “the person warning” in Form 5, Lagos High Court Civil Procedure Rules, which is a warning to him to give particulars of any contrary interest which the caveator has in the estate of the testator – Order 55 Rule 71(8), Lagos High Court Civil Procedure Rules. The caveator shall enter appearance or respond by filing Probate Form 6, Lagos High Court Civil Procedure Rules. The forms are used by the caveator to disclose the nature of the contrary interest in the estate of the testator. A caveator not having interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person, may within eight (8) days of service of the warning upon him inclusive of the day of such service, or at any time if no affidavit has been filed by the person warning that the caveator has been served with the warning and has not responded, issue and serve a notice to be served on the caveator – Order 55 Rule 71(11), Lagos High Court Civil Procedure Rules.

4.      Appearance – Where a caveator wishes to respond to the warning, he is required to file an appearance to the citation or warning. In the appearance, the caveator will disclose the nature of his interest in the estate and the reason he desires that the applicant should not be granted probate. However, where an appearance is not entered, the caveator who has not entered appearance to the warning may withdraw his caveat by giving notice of withdrawal to the Probate Registrar – Order 55 Rule 71(10), Lagos High Court Civil Procedure Rules. Where the caveator fails to respond within the time stipulated, the applicant may file affidavit showing that the caveator has been cited and warned, but no summons or response has been received. Thereafter, the caveat shall cease to be effective and probate may be granted – Order 55 Rule 71(12), Lagos High Court Civil Procedure Rules. Where a probate action is commenced (whether or not any caveat is entered), the action will operate to prevent the sealing of a grant until application for grant is made by the person shown to be entitled by the decision of the court in such action.

5.      Probate Action – Where the caveator enters an appearance to the warning and discloses a contrary interest, probate will not be granted but the matter will be heard in court for grant of probate in solemn form. Where the Will is referred to the court to be proved, the propounder shall have the burden of establishing its due execution or validity or that the testator had knowledge of its content and approved it – Okelola v. Boyle (1998) 2 NWLR (Pt. 539) 533; Adebajo v. Adebajo (1971) All NLR 155.

At the conclusion of the probate trial, the Probate Registrar may or may not grant probate depending on the outcome of the action. If the court pronounces for the Will, the registrar would grant probate. However, if there is a pending appeal, probate will not be granted until the appeal is finally determined in favour of the Will or the propounder of the Will. Pending the decision of the action in court, the court has the discretion to grant a temporary administration pendete lite to preserve the estate – Mortimer v. Paul (1870) LR 2 P & D 85.

DOUBLE PROBATE

This is the grant of double probate. It is granted where a person applies for a grant after a grant had been earlier made to an Executor. While the first application for a grant is the original grant, the second application for a grant is what is referred to as double probate. This arises in the following circumstances –

1.      Where one of the executors is a minor at the period the original grant was made to the other executors (being adults). He can apply for a double grant upon reaching eighteen (18) years (which is the age of maturity in Lagos jurisdiction).

2.      Where a grant is made to the maximum number of four (4) executors and a further executor is prevented from taking the grant, such person may apply for double probate if a vacancy occurs e.g. death of any of the four executors.

3.      Where for any reason, one of the executors is unavailable (e.g. being sick), or does not wish to take grant immediately, he may apply for double grant subsequently.

GROUNDS FOR REFUSAL TO GRANT PROBATE OR LETTERS OF ADMINISTRATION

The court has discretion to grant probate or letters of administration in the estate of the testator – Onewokae v. Onewokae (2007) All FWLR (Pt. 356) 788. Such grounds of refusal includes the following –

1.      Where the applicants have failed to file the necessary documents to their applications for the grant of probate or administration.

2.      Where the court is satisfied that the applicants are outside the table of those to be considered for the grant as set out in the relevant legislations – Order 55 Rule 25, Lagos High Court Civil Procedure Rules; section 49 Administration of Estates Law, Lagos State.

3.      Where an application for probate and administration are made when the testator is still alive.

4.      Where the applicant is not such person with the best interest of the estate of the deceased at heart and will likely mismanage the estate.

5.      Where the applicant is an infant, probate or administration will not be granted directly to him except to both of his parents jointly, or to a guardian appointed by the court.

REVOCATION OF GRANTS

These are instances where grants may be revoked. They are –

1.      Where it was made to a person whom it ought not to have been made, e.g. where an application is made fraudulently; or where the testator thought to have been dead is still alive, etc.

2.      Where a subsequent Will or codicil is discovered which supersedes the Will upon which the first grant was made.

3.      Where it was later discovered that the Will upon which a grant was made had been revoked or was invalid before the grant.

4.      Where the person to whom the grant was made consents to its revocation.

RE-SEALING

Where the testator or intestate has property outside the state where grant of probate or of administration is made, the grant shall be resealed – section 2 of Probate (Re-sealing) Act.  Section 2 of the Probate (Re-sealing) Act provides that –

“Where the High Court of a State has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of the deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produce to, and a copy thereof deposited with, the High Court of any other State be re-sealed with the seal of that other court.”

The effect of re-sealing a probate or letters of administration in a State High Court by another State High Court is to make it seem as if the seal of court is granted by the High Court of that State. That is, re-sealing enables a grant made in one state or country to be effective within another state or country.

The personal representatives of the deceased have no power over the property of the deceased outside the state where grant is made. They also lack locus to institute action in respect of such property that are outside the state where the grant is made – Federal Admin-General v. Arigbabu (1964) NMLR 135. The resealing is made in respect of the property of the deceased found outside the state or country where the original grant was made.  It is regulated by the various High Court Laws and Rules. The resealing shall be made in that other states where the property exists or is situate.

APPLICATION FOR RE-SEALING

This shall be made by the person to whom the grant was made or by any other person authorised in writing to apply on his behalf to the Probate Registry.

The applicant shall complete and return the following forms to the Probate Registrar –

1.      An application for re-sealing of probate/double probate.

2.      An oath to lead re-sealing.

3.      A bank certificate.

4.      An inventory.

5.      Particulars of freehold/leasehold property left by the testator.

6.      Administration bond on application for re-sealing.

Before re-sealing a probate or letter of administration, the court shall satisfy itself that –

1.      Estate duty has been paid in respect of so much, if any, of the estate as is liable to estate duty in that State; and

2.      In the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in that State to which the letters of administration relates.

The applicant is required to provide sureties who shall swear and execute the Administration Bond on Application for Re-sealing Form as a deed, and the application is published in a local newspaper. After re-sealing the grant, the Probate Registrar shall send notice of the re-sealing to the court that made the grant.

LETTERS OF ADMINISTRATION (WILL ATTACHED)

Where the testator died testate but there is no executor to prove the Will, then letters of administration (Will attached) is required.

This may arise under the following circumstances –

1.      Where there is no executor appointed for the Will.

2.      Where the sole executor is an infant, a person of unsound mind or is incompetent due to other disabilities.

3.      Where the sole executor renounces the Will or he refused to neglect to respond to a citation to accept or refuse to take grant.

4.      Where the testator appointed a sole executor who predeceased the testator or died before proving the Will.

5.      Where the executor or all the executors are abroad and they jointly appoint an attorney to take out the grant.

APPLICATION FOR GRANT

The applicant must satisfy the Probate Registrar about the reason or reasons for the absence of the executor, therefore where it is alleged that the executor is dead, or he renounced his executorship, or he is an infant, or he is abroad and has appointed an attorney to apply for the grant, this fact must be proved by tendering the relevant document or documents. Thereafter, the Probate Registrar shall inspect the Will to ensure that it was properly executed and attested.

The following forms are issued to the applicant or applicants for completion and return –

1.      An application for letters of administration.

2.      An inventory.

3.      A statutory affidavit of next-of-kin.

4.      An oath for administration (Will attached).

5.      An administration bond (Will attached).

6.      Justification of sureties.

7.      Renunciation of administration (Will attached).

8.      Bank certificate.

9.      Particulars of freehold/leasehold property left by the deceased.

10.  Schedule of debt due by the deceased and the schedule or funeral expenses.

11.  Passport photographs of the applicants.
    

     Barr. Ezekiel Chigozie has many years experience in providing legal representation and advising clients across exceptional broad range of contentious and non-contentious matters. His main goal is to help clients resolve contentious or non-contentious legal problems they are having rapidly and cost effective. 08034997413