PL-PRACTICE WEEK 18 PROBATE PRACTICE
WEEK 18 — PROBATE PRACTICE.
Here we are concerned with the procedure for the grant of probate and Letters of Administration which is needed by executors and administrators respectively to deal with the estate of the deceased. Otherwise may be referred to as an intermeddler-Bank of West Africa Ltd v Ricket.
Applicable laws can be selected from beginning’s (AEL(L), WL(L), WA, HCCPR, Marriage Act, RPC, LPA, Case Law and Judicial Precedents).
– Grant of Probate (Common or Contentious): When deceased died testate and appointed executors in his validly made Will.
– Grant of Administration with Will Annexed: when deceased died testate but no executors (maybe he did not appoint executors or executors renounced or died or cannot act or a minor, etc.)
– Grant of Simple Administration: Where deceased died intestate.
GRANT OF PROBATE: (NON-CONTENTIOUS AND CONTENTIOUS PROBATE)
Probate is the legal/judicial confirmation of the authority of the executor(s) to act granted by the Registrar of the High Court (> 7 days after death of testator) to an interested person (i.e. executors first, then other qualified persons for administration with will annexed[1]) who applies-Or 49 HCLL, 57 FCT.
Before probate, all are regarded as executor de son tort. See generally; Odusoga v Ricketts?
- Grant of Probate in Non-Contentious/Common Form:
Step one: Search for and discover the testator’s will (usually after burial ceremonies are over[2]).
Discovery of Will[3]: depends on whether the testator made a will known to his lawyer. If yes, the lawyer should intimate the probate registrar that the testator had deposited his Will at the registry and search the probate registry (by application to the Probate Registrar) using testator’s death certificate, particulars of the testator (names, last address, date of death…) and names of persons likely to be interested in the testator’s estate. Then solicitor requests the registrar to appoint a date, time and place when the will would be read to the interested persons.
Reading the Will: is done by the probate registrar/solicitor 7 days after the testator’s burial (the probate registrar can extend the time) in the presence of interested persons, after breaking the seal on the will. Records of the proceeding should be made-Ajibaiye v Ajibaiye. On all Or 49 ABJ and 57 Lagos.
Applying for Probate: is done by executor using FORM D2, National Population Commission NPC[4] (death certificate) and a written application indicating particulars of the testator, the date and place of death of the testator, that the testator was resident in the jurisdiction of the court shortly before his death, that the testator made the will, and name (s) of executor (s).
The following documents should accompany the duly prepared application: copy of will, testator’s death certificate; declaration on oath of executors to faithfully and judiciously administer the estate, proof of the applicant and testator, duly completed Inventory of deceased’s properties (usually prepared on oath), justification by sureties on behalf of the applicant to guarantee his administration of the estate, duly completed bond to pay the debts and liabilities of the deceased’s estate, bank certificate (detailing contents of the testator’s bank account), where the application is for probate, an affidavit of due execution i.e. a sworn affidavit of attesting witnesses to the Will stating that they are witnesses to the executed will, next we have passports of the executors and witnesses to the will.[5].
Next (this is fused with the above); Proof of the Will by executors. If he delays or hesitates, a person interested in the estate shall cause a notice to be sent personally to executor to appear within 21 days (14 days in Abuja) before the court to prove the will or renounce probate. Enter an appearance to the citation within 8 days??? Failure to appear within time? Citor may apply to the judge for will to be declared invalid or for summons??? For probate to be granted to the citor.
Assessment of the Estate
Finally, the probate registrar grants probate or letters grants letter of administration after he is satisfied that Will was duly executed, testator made the will with knowledge of the contents and other conditions for grant have been met.
- Grant of Probate in Solemn/Contentious form: usually where the Validity of the Will is contested or appointment of executor is challenged or probate is sought to be revoked or denied. Therefore, after the first step of searching for the will, then there is an application for probate, then there is a CAVEAT Probate FORM 3 or 4 (Lagos) and FORM 189 (Abuja). i.e. an objection to the grant of the probate
Probate will not be granted until the caveat expires (after 3 months in Lagos and 6 months in Abuja). A caveat must be brought before grant of probate (not even on the day of grant) [6].
The probate registrar shall notify any applicant for probate of the caveat, and shall not grant probate if he knows of the caveat Dan-Jumbo v Dan-Jumbo[7].
A caveat shall cease to be effective after 3/6 months or where caveator fails to enter appearance to a citation within prescribed time or where caveat is filed after grant of probate. Or where caveator withdraws his caveat by giving notice of withdrawal to probate registry. Still Order 57 Lagos and Abuja.
Citation: the applicant for probate (executor) may cite (warn) the caveator by filing Form 5 (Lagos) or Form 190 (Abuja) asking him to state his interest in the property within 8 days of receiving the citation.
Appearance: the caveator could respond to the citation by entering an appearance using FORM 6 (Lagos) or FORM 191 (Abuja) disclosing the nature of his interest and the reason (according to him) the applicant—executor should not be granted probate within 8 days. Here a probate action is said to have commenced and should be heard in court according to court procedure. He could also give a notice of withdrawal.
If he does not respond within 8 days, the executor shall file an affidavit stating that the caveator had been cited but did not respond. At this point the caveat ceases and probate may be granted to the executor[8].
Probate Action: is commenced by (by caveator or executor through) writ of summons (it being a contentious matter) in the High Court once the caveator responds/ appears/ states his reasons for challenging the will Igunbor v Afolabi, Coker v Coker.
Any appeal on grant of probate[9] will suspend grant of probate Mortimer v Paul.
After hearing the matter; the court may; – pronounce in favour of the will (and PRegistrar would grant probate).
Pending the conclusion of the dispute, the court could appoint administrator pendent lite to preserve the estate- Mortimer v Paul.
PROCEDURE FOR OBTAINING / GRANT LETTERS OF ADMINISTRATION
The procedure for applying for letters of administration is largely like that of probate. Just that in addition/comparison, there is oath of administration, Administrators bond, declaration as to next of kin form, inventory, particulars of inventory, publication in a gazette or newspaper.
It appears publication is one distinctive feature of LOA. Confirm. It is to give members of the public notice, prevent fraud, slying and enables objectors to file a caveat within 8 days from publication See Ibe v Ibe.
The publication is made under the authority of the chief registrar of the high court should contain name of applicants, particulars of the deceased and his estate and period within which objection should be filed (depends on the state e.g. in former Northern and Eastern States; 21 days).. In the absence of objections, the LOA can be granted. In lagos caveator has 8 days to respond.
Grant can also be revoked (in addition to grounds for refusal to grant) where court discovers that it ought not have granted (see grounds stated in refusal earlier in footnote), where there was already an existing caveat or proceeding against the grant, where the grant was made for a revoked/invalid will (this could be where a subsequent will or codicil is discovered), deceased is not in fact dead, person to whom grant was made consents to the revocation. Hitherto payments and bona fide representations are still valid-Section 17 AEL.
WHO IS ENTITLED TO LA IN INTESTACY: the court should judiciously exercise its jurisdiction considering the rights of all parties interested.
The grant in priority starts with the surviving spouse (husband or wife of the deceased) then surviving children of a deceased person[10] or their surviving issues then the father or mother of the deceased, then the brothers or sisters of the deceased-Tapa v Kuka (first of full blood then half blood), then to grandparents of the deceased, then to uncles and aunts of the deceased or their surviving children, then creditors of the deceased then administrator general where all the preceeding fail. 49 AEL, Williams v Ogundipe.
Obusez v Obusez, says that where the deceased died intestate but was married under the Marriage Act, the property would be distributed according to AEL… meaning that the surviving spouse will succeed to 2/3rd of his estate, becoming a beneficiary and a qualified person to apply for LOA.
DOCUMENTS TO PROCESS PROBATE AND LETTERS OF ADMINISTRATION.
- DOUBLE PROBATE. is a re—application[11] for probate after probate has been granted if:
- One of the executors was a minor at the time of grant, but has reached adulthood (18 in the states, 21 nationally).
- A grant was made to 4 executors and one has died or resigned; a ‘waiting’ executor can apply for double probate.
- An executor is unavailable or does not wish to take the grant immediately he may apply for a double grant subsequently.
- An executor recovers his mental capacity.
An executor was abroad and arrives after grant of probate.
RESEALING: By virtue of Section 2 of the Probate (Resealing) Act, a grant made in State/Country A can be effective in State/Country B if the grantee(s)[12] re-seals it in Country B instead of re-applying for another grant.
Apply for re-sealing by filling Application form, Bond for Re-sealing, Inventory of Properties, attaching copy of First Grant, Inland Revenue Affidavit, CTC of Will, Oath sworn by applicant. Pay probate duty and advertise application for re-sealing. Court may also order advertisement of application to reseal.
After re-sealing, Registrar of State B sends notice of the resealing to State A (i.e. where the original grant was made).
- IDENTIFY ETHICAL ISSUES ARISING FROM PROCESS OF OBTAINING PROBATE
[1] For administration with will annexed it is in this order; Residuary Legatee or devisee, Specific Legatee or devisee, Creditor, specific devisee entitled upon contingency or any of the above’s PR can act in their turn.
[2] Section I Births, Death, etc (Compulsory Registration) Decree No 69 of 1992.
[3] Anyone in possession of a will who knows the testator is dead must produce it within 14 days. It is an offence to conceal a Will.
[4] Pursuant to powers under Births and Deaths etc (Compulsory Registration) Act.
[5] See Or 55 Rule 34 HCLSCPR 2004.
[6] Caveat contains name of caveator, interest of caveator in the testator’s property, and particulars of the testator.
[7] Caveat can be reentered after expiration.
[8] A caveat ceases when the caveator does not make an appearance within 8 days of receiving citation and the executor makes this known to the probate registrar; when the caveator gives notice of withdrawal; and after 3 months in Lagos (6 in Abuja).
[9] Probate would not be granted where applicant fails to file necessary documents, applicants are not within the ambit of interested persons under the law, deceased is still living, applicant-executor is an infant except acting through both parents/ guardian appointed by court, applicant does not have best interest of estate at heart, executor is absent, public policy e.g. murderer of the testator, executor of unsound mind, when the executor has been removed by court and where having regard to all other circumstances, it would be unjust or inequitable to grant. When the only executor is an infant, letter of administration with the will annexed will be granted to his guardian until the infant turns 18.
[10] These two categories have exclusive
[11] with same document for normal application and particulars and copy of original grant
[12] All grantees unless the court excludes one or more of them. If the grantee is not the executor but is a creditor, or attorney of entitled person or resides outside the state or other deserving circumstances, the court may require sureties.
