Sample Affidavit of Due Execution

Sample Affidavit of Due Execution

IN THE HIGH COURT OF LAGOS STATE

(PROBATE REGISTRY)

IN THE MATTER OF ...................................................................................... (Deceased)

AFFIDAVIT OF DUE EXECUTION OF WITNESS ATTESTING TO A WILL

I .......................................................................... do hereby make Oath and say:

1.      That I am one of the subscribing witnesses to the last Will of ...................................... late of deceased (the said Will being now hereto annexed), bearing the ........................... day of ............................... 20 ............... and that the testator executed the said Will on the day of the date thereof by ................................ and the same now appears thereon in the presence of me, and of ................................ the other subscribed witness thereto .................................. of us being present at the same time and we thereupon attested and subscribed the said Will in the presence of the testator.

2.      That the said Will was previously to the execution thereof as aforesaid, correctly interpreted to the testator ........................... in our presence by ............................. of .................................. and the testator .................................. appeared perfectly to understand the same.

_______________

                    Deponent

Sworn to at the High Court Registry, Lagos.

Dated this ............. Day of ............... 20.....

BEFORE ME

_____________________

COMMISSIONER FOR OATHS

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Sample of Probate

Sample of Probate

IN THE HIGH COURT OF LAGOS STATE

(PROBATE REGISTRY)

PROBATE

IN THE MATTER OF ...................................................................................... (Deceased)

BE IT KNOWN that on the ............................ day of ..................................... 20 ............

The last Will .................................................. (a copy whereof is hereto annexed) of ................................................. Late of ....................................... deceased, who died on the ....................................... day of ............................. 20 ............. at ....................................... and who at the time of ......................................... death had ................................... fixed place of abode at .......................... within the jurisdiction of this Court, was proved and registered in this Court, and that the administration of the real and personal property of the said deceased was granted by the aforesaid Court to ............................................................................ the ............................................................ executing ........................................ named in the said Will who having been first duly sworn.

Sworn under ........................................................... and that the testator .............................. died on the .................................................... day of ...................................... 20 ..............

___________________

Probate Registrar

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Sample of Letters of Administration

(Sample of Letters of Administration)

IN THE HIGH COURT OF LAGOS STATE

(PROBATE REGISTRY)

LETTER OF ADMINISTRATION (Without Will)

IN THE MATTER OF ...................................................................................... (Deceased)

Letters of Administration of the real and personal property of .......................... Late of ................................... (Deceased),

Who died on the ......................................... day of .................................... intestate, and who had at the time of ........................................ (his/her) death ........................................ (his/her) fixed place of abode at ..................................... within the jurisdiction of this Court were granted by this Court to ................................................... of ........................................

Sworn under ........................................................... and that the testator .............................. died on the .................................................... day of ...................................... 20 ..............

___________________

Probate Registrar

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DAN-JUMBO v. DAN-JUMBO

DAN-JUMBO v. DAN-JUMBO (1999) 7 SCNJ 112

FACTS

Due to the death of Chief Emmanuel Erefa Jene Bonny who died leaving a Will (testate), the Probate Registrar invited his five children and read the Will to them.

The same day the Will was to be read, was the same day that the respondent filed a caveat attacking the Will on the ground that the signature on it was not that of Chief Bonny (their late father). The respondent and 1^st to 4^th appellants were the five children of the deceased.

The defendant (respondent) filed a caveat attacking the validity of the Will in the High Court of Rivers State and issued out a Writ of Summons to the 1^st to 5^th defendants (appellants) claiming for the revocation of the grant of probate in respect of the Will of late Chief Bonny made to the 1^st to 4^th defendants by the 5^th defendant on 06/07/76 without notice to the plaintiff’s appeal against the validity of the said Will was pending.

The trial court held the grant of probate invalid and revoked it. Aggrieved by the decision of the trial Court that the Will be revoked and declared invalid, the appellants appealed to the Court of Appeal, which unanimously dismissed their appeal and affirmed the decision of the lower court. Dissatisfied again, they further appealed to the Supreme Court.

HELD

1.      Although an appeal against a decision will not operate as an automatic stay of execution against such judgment, the court should always consider the facts in the case as to whether such judgment if enforced will not render nugatory the obtained result.

2.      The Probate Registrar did not take the appropriate steps which he should have taken after the entry of caveat by the respondent, for he ought to have issued a notice to appear against the caveator, respondent, on behalf of the 1^st to 4^th appellants whose application for a grant had been stopped.

3.      The Probate Registrar was not entitled to grant probate to the other four appellants after conclusion of the case by the High Court when an appeal had been lodged against the judgment.

4.      There was no necessity to apply for a stay of execution as the lis was still pending and the Will was still in litigation.

5.      The taking of an administration with a Will annexed was obtained irregularly.

6.      The principle of lis pendens is that the law does not allow to the litigant parties to give to them during the currency of the litigation involving any property rights in such property so as to prejudice any of the litigating parties.

7.      A caveat cannot be sealed if the Probate Registrar has knowledge of an effective caveat.

8.      The caveator was entitled to be put on notice by the Probate Registrar before proceeding to make the grant (application for grant of probate is to be in solemn form). The grant of probate was irregularly obtained.

Thus, the Supreme Court dismissed the appeal and stated that the trial court was right to revoke it, and the Court of Appeal was also right to affirm it.

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OBUSEZ v. OBUSEZ

OBUSEZ v. OBUSEZ (2007) 10 NWLR (Pt. 1043) 430; (2007) ALL FWLR (Pt. 374) 227

CYPRIAN PETER OBUSEZ    ......................................................           APPELLANTS            

EDWARD OBUSEZ

V.

MRS. SYLVIA TECKIA OBUSEZ   .............................................           RESPONDENTS

ADEMOLA GIWA

FACTS

The 1^st respondent (Mrs. Sylvia Teckia Obusez) and the deceased (Cornelius Paul Obusez) got married under the Marriage Act on the 8^th of July, 1972, they were both from Delta State. The union produced five (5) children. Though, their relationship was not smooth as a couple.

On 29/5/88, Mr. Cornelius Paul Obusez was assassinated and he died intestate (without a Will) while residing at No. 17 Obokun Street, Ilupeju, Lagos. The 1^st respondent was charged along with other persons for the murder of her husband. She was discharged.

The deceased was survived by the 1^st respondent, his five children and the appellants, who are his full brothers. The 1^st appellant was in fact, his twin brother, and the deceased was buried in his twin brother’s personal residence. During his lifetime in 1977, the deceased took out a life insurance policy naming the 1^st respondent and his two children who were born in that time as beneficiaries.

After his death, the respondents instituted an action at the Ikeja High Court, Lagos praying the court that she (the 1^st respondent), together with her five children were the only persons entitled to the estate of the deceased and an order that grant of letters of administration be issued to her and a friend of the deceased (the 2^nd respondent). The appellants in response, filed a counter-claim in which they claimed that they were the only persons entitled to administer the estate of the deceased, and an order that the grant of letters of administration be issued to the appellants.

The trial court granted the prayers of the 1^st respondent and held that under Nigeria’s law of succession to the estate of Nigerians who contract marriages under the Marriage Act, the 1^st respondent and her children were the only persons entitled to the estate of the deceased, and that as beneficiaries of the estate, they were entitled to a grant of letters of administration to administer the estate. The trial court further held that it was proper and lawful that the 2^nd respondent be appointed a co-administrator with the 1^st respondent as all the children were minors. Therefore, the trial court dismissed the counter claim. On appeal to the Court of Appeal by the appellants, the decision of the trial court was affirmed.

Aggrieved by the decision of the Court of Appeal, the appellants further appealed to the Supreme Court.

HELD

On distribution of estate of deceased married under Marriage Act and who died intestate – The Supreme Court stated that by virtue of section 49(5) of the Administration of Estates Law, Lagos, where any person who is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate leaving a widow or husband or any issue of such marriage, any property which the intestate might have disposed by Will shall be distributed in accordance with the provisions of the Law, notwithstanding any customary law to the contrary.

On Law applicable to succession to estate of the deceased married under Marriage Act and who died intestate in Lagos State – The Supreme Court stated that in respect of the succession to the real and personal estate of a person married under the Marriage Act and who dies intestate in Lagos, section 49(5) of the Administration of Estates Law of Lagos State is the applicable law and it does not matter whether section 36(1) of the Marriage Act which was applicable to the former Colony of Lagos had been repealed or not. However, both the Law and Act stated above enact that in the event of a spouse married under the Act dying intestate and being survived by his spouse and children, the surviving spouse shall succeed to two thirds (²/₃) thereof and this makes the spouse a beneficiary of the estate and a qualified person to apply for Letters of Administration of the estate of the deceased spouse.

On whether Items 60 and 67 of the Exclusive Legislative List, 1979 Constitution cover cases of succession to and administration of estate of intestate – The Supreme Court stated that by Items 60 and 67 (which are Items 61 and 68 of the Exclusive Legislative List, 1999 Constitution). Item 60 on the Exclusive Legislative List pertains and is limited to the formation, annulment and dissolution of marriages. It cannot be expanded to cover cases of succession to, distribution and administration of the estate of an intestate. Also, Item 67 of the list cannot be construed to include matters beyond those specifically mentioned in Item 60.

On whether intestate succession determined by place of burial of the deceased or by a life policy made inter vivos by the deceased – The Supreme Court stated that the succession to the property of a person who died intestate is not determined by the place of burial of the deceased or by a life policy made inter vivos by the deceased.

The Supreme Court held that the appeal fails and was therefore dismissed and the decision of the Court of Appeal affirmed.

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