OVERVIEW OF GRANT OF PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA
ALL YOU NEED TO KNOW ABOUT GRANT OF PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA
PROPERTY LAW TRANSACTION
OVERVIEW OF GRANT OF PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA
It deals with the procedure the administration of the estate of the deceased after his death. It also refers to the procedure for grant of probate and letters of administration in both contentious and non-contentious cases. Probate or letters of administration are required for the administration of the estate of a deceased.
Probate is obtained in the case of testate succession, while letters of administration is obtained with respect to intestate succession and testate succession in some instances. While it is possible to obtain letters of administration for testate succession, it is impossible to obtain probate for intestate succession.
Even though an executor derives his powers and authority from a Will, probate is the authority that validates such powers. Thus probate confirms the power of the executor to act. The administrator derives his power from the letter of administration. For the purpose of emphasis, both executors and administrators are regarded as personal representatives of a deceased. An executor is appointed by the deceased in his Will while the administrator is appointed by the court in line with the provisions of the law. Thus, while probate confirms the authority of an executor, a letter of administration confers the authority of an administrator.
In BANK OF WEST AFRICA LTD v. RICKET, it was held that until probate or letter of administration is granted, the executor or administrator who interferes with the estate of the deceased, without applying for probate or administration within prescribed time, is an intermeddler or an executor in his own wrong (executor de son tort).
Administrators derive their powers from letters of Administration while executors derive their power from the will. Probate is a mere confirmation of such power.
APPLICABLE LAWS GRANT OF PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA
a) Administration of Estate Laws of various states of the federation
b) Wills Act, 1837, as amended by the Wills (Amendment) Act of 1852
c) Wills Laws of the various states
d) Rules of court, such as the High Court of Lagos State (Civil Procedure) Rules 2012.
e) Marriage Act
f) Case Law/Judicial precedent
i) CFRN 1999, as amended.
1) Evidence Act 2011
DEFINITION OF TERMS
1) PERSONAL REPRESENTATIVES: these are persons upon whom the estate of a deceased is vested. These include executors appointed by the testator or by representation or administrators.
2) TAKING OUT REPRESENTATION: obtaining probate for a Will or a grant of administration
3) CITATION: this is a notice of warning filed by a person called the Citor directing another to do the needful. It is used in the following instances:
a. It is a notice or warning to an executor to prove a Will and apply for probate. That is, where an executor refuses or neglects to apply for probate within the prescribed 3months (Lagos) or 6months (Abuja), the citor can cite him to do the needful by applying for probate
b. It is a notice or warning to a caveator to disclose the nature of his interest in the estate of the deceased. That is, where a caveator files a caveat against an application for grant of probate, the applicant can file a citation asking the caveator to state or declare his interests in the estate of the deceased, which is contrary to those of the citor/applicant
o It is a notice or warning to a personal representative to accept or reject probate or administration. See Order 58 r 18 Lagos.
4) TRUST CORPORATION: this is a public trustee or corporation appointed by the court in any particular case to be a trustee of or be entitled to the estate of the deceased under the Public Trustee Law. The law is that Letters of administration can only be granted to at least two persons. An exception to this rule is that a trust corporation can be appointed as sole administrator/executor.
Can a bank be appointed as executor of a will? Yes, the testator can appoint a bank as a trustee. however under public trustee law, a public trustee can only be appointed by a court.
Ø INTESTATE: a person is said to die intestate when the person died without making a will or where the person made a will but left some parts of his estate not covered by the will. Section 2 AEL LAGOS STATE.
Ø CAVEATOR: a person who raises objection to the grant of probate or letters of Administration. His aim is to ensure that no grant is made to the person OR also no grant without his notice.
Ø PROPOUNDER OF A WILL:this is a person who wants probate to be granted. They are interested parties who can be also the executors of the will.
TYPES OF GRANTS:
There are basically three (3) types of grants. They are:
1) Grant of Probate (Will + Executors): this is obtained where the deceased died testate, leaving a valid Will with executors who are willing, capable and available to act validly appointed under the Will. Here the executors have been appointed under the Will. The main concern of the court is to grant probate to the executors named in the Will to administer the estate.
1) Grant of administration with Will annexed (valid Will – executors; or valid Will + unwilling executors; or valid Will + executors absent; or valid Will + executors died before application). Here, the deceased died testate (leaving a Will), but failed to appoint executors under the Will or the executors appointed renounce probate or are incapable of applying for probate (incapacity or out of jurisdiction) or have long died or are infants etc. In such cases the court is concerned with the grant of letters of administration to persons who are interested in the estate to administer the estate of the testator.
NOTE: where there is a refusal to act or disqualification to act by the executors, administration with the will annexed will be obtained.
2) Grant of simple administration – section 47 AEL: this could arise where the deceased died without leaving a Will at all (total intestacy) or where some part of his estate is not covered by the Will and there is no residuary clause (partial intestacy) or where the Will is declared invalid.
Note that whenever there is partial intestacy, there will be two grants…
It must be noted that the grant of probate or letters of administration may either be GENERAL OR LIMITED. Where it is general, the personal representatives have the authority to act for all purposes in the administration of the estate, extending to all the property in the estate without time limit. On the other hand, the grant could be limited as to time, purpose or property.
· Limited as to property: a grant could be limited to a part of the estate. This could arise, for instance, where the testator requires experts to handle that part of the estate. In this case, we could have a general executor and a limited executor.
· Limited as to purpose (also known as grant save and except or grant caetorurum) : this could take the form of a grant pendente lite (grant for the duration of litigation) or a grant ad litem (a grant which enables the grantee to commence or continue proceedings involving the estate) or a grant ad colligenda bona (a grant which is made to enable the grantee collect and preserve assets in the estate or to preserve perishable goods, especially where the person entitled to a general grant is not in a position to obtain the grant immediately).
· Limited as to time: a grant could be limited as to time where it is either taken on behalf of the minor or the person entitled is mentally incapacitated as at the time of the grant. In such a case, the grant will subsists until the infant attains majority. This is a grant duranteminoreaetate (a grant made to a person for the duration of the minority of the actual person entitled).
It must be noted that grant of probate will only be limited if the testator clearly stipulates such limitation. But in the case of the grant of letters of administration, the grant can be limited depending on the circumstances of each grant.
TIME TO LODGE A WILL
Anyone in custody of the testator's will must lodge same at the probate registry of the state in question IMMEDIATELY after knowledge of the testator's death. In Abuja he has 14 days after his knowledge of the deceased’s death to lodge the will. Order 49 r 1(2) Abuja. In Lagos it is 3 months of knowledge of the testator's death. ORDER 58 rule 15 HCCPR LAGOS.
OBTAINING A GRANT OF PROBATE/ APPLICATION FOR A GRANT OF PROBATE
Probate is usually granted upon an application made to the Probate Registrar by an interested person, either personally or through his legal practitioner.
By Order 48 r 1(1) Abuja and Order 57 r 1(1) Lagos, all applications for grant of probate or letter of administration shall be made to the Probate Registrar of the High Court in that State. See also section 20 AEL
TIME OF GRANT
By Order 48 r 1(3) Abuja, probate and letters of administration with Will annexed shall not be granted until after seven (7) days from the death of the testator; and, letters of administration without Will annexed shall not be issued within fourteen (14) days from the death of the deceased.
In Lagos, on the other hand, by Order 57 r 1(2) Lagos, probate or letters of administration with Will annexed shall not be issued within fourteen (14) days from the death of the testator; and, letters of administration without Will annexed shall not be issued within TWENTY-ONE (21) days from the death of the deceased.
The foregoing applies in both contentious and non-contentious cases.
WHO IS ENTITLED TO GRANT OF PROBATE?
Where a person dies testate, the power to apply for probate lies in the Executor or Executors However, where the executors renounce probate or are unavailable, letters of administration with the Will annexed will be granted to the following persons in the following order of priority as provided for under Order 58 r 23 Lagos:
o The executor(s) where there is a will.
o Any residuary legatee or devisee holding in trust for any other person
o Any residuary legatee or devisee for life
o The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency. Provided that unless the judge otherwise directs a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency.
See Order 58 r 23 Lagos.
GRANT OF PROBATE WHERE THE TESTATOR IS WAS DOMICILED OUTSIDE NIGERIA
Where the testator was domiciled outside Nigeria, the EXECUTORS named in the Will shall be entitled to probate unless the court makes a contrary order that probate be granted to any of the following:
2) Persons entrusted with the administration of the estate by the court.
3) Persons entitled to administer the estate by law
4) Such persons as the judge may direct.
Thus here too, the executors are the first that are entitled to apply for grant of probate
PROCEDURE FOR OBTAINING GRANT OF PROBATE IN NIGERIA
The procedure for the grant of probate depends on whether the application for probate is contentious (solemn form) or non-contentious (common form) in nature
Procedure for non-contentious grants (common form)
The procedure is in this order: search for the will, discovery, marking and reading of the Will, application for probate, proof of the Will andgrant of probate.
a) 1 Search for the will.
0. Discovery, Marking and Reading of the Will: the search for the testator’s Will begins after the burial ceremonies are over. Usually the original copy of the Will is kept at the probate registry. See Order 58 rr 1 & 2 Lagos. If the Will is the possession/custody of the testator or any other person, he is to send it the probate registry within three (3) months of his knowledge of the testator’s death. See Order 58 r 15 Lagos.
If the Will is found at the probate registry, it will be read at a designated time or day as may be determined by the Probate Registrar. The Will must be read in the Probate Registry or any place the Probate Registrar determines and he shall be the supervising officer.
Where the Will cannot be found and there is reasonable grounds to believe that a person has knowledge of any testamentary document of the deceased testator, the Court may summarily order that such a person be examined or interrogated in respect of the document in court. He may be asked to produce the document within his possession. Order 48 r 6 Abuja.
b) The probate registrarer may summon the persons who are interested in the estate of the deceased and when they appear on a fixed date, the Registrar then brings out the Will, breaks the sealed wax on it and reads the Will in the presence of the persons present and makes a record of the proceedings for the day.
3 Application for probate:after the reading of the Will, the executors will make an application for probate. In Lagos, the application for grant of probate is by way of PETITION, while in Abuja, the application is by way of LETTER In either case, the application is made to the Probate Registrar. The CONTENTS of the application for grant of probate are as follows:
i. Particulars of the testator: name, marital status before death, names of spouse and children,
ii. Date and place of death of the testator, address of the testator.
iii. That the testator was resident within jurisdiction shortly before his death
iv. That the testator was found to have made a Will
i. NAMES OF the executors named in the Will., If any.
The documents needed to process the application to a grant of probate and which will accompany the application for grant of probate are:
i. Application for grant of probate (whether by letter (Abuja) or Petition (Lagos)).order 57 Lagos, 48 Abuja.
ii. A CERTIFIED TRUE COPY of the Will
iii. The Death certificate of the testator. Order 57 Lagos, 49 r 8(5) Abuja.
iv. Proof of identity of the applicant(s) and the testator such as drivers’ licence, national I.D., international passport etc.Order 57 Lagos, 49 rule 9(2) Abuja.
v. Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death. Order 49 r 10 Abuja, order 57 Lagos.
vi. Declaration of all the personal properties of the testator
See Order 49 Abuja and Order 57 Lagos.
It must be noted that an application for probate with Will cannot be made within seven (7) days (Abuja) and fourteen (14) days (Lagos) from the date of death of the testator. However the application for grant of probate must be made within three (3) months (Lagos) or six (6) months (Abuja) from the death of the deceased. If they fail to apply for probate within the prescribed period, they lose the right to apply except if there are special circumstances.
In this regard, by Order 48 r 1(3) Abuja, probate or letters of administration with Will annexed shall not be issued within seven (7) days from the death of the testator; and letters of administration without Will annexed shall not be issued within fourteen (14) days from the death of the deceased.
In Lagos, on the other hand, by Order 57 r 1(2) Lagos, probate or letters of administration with Will annexed shall not be issued within seven (14) days from the death of the testator; and, letters of administration without Will annexed shall not be issued within fourteen (21) days from the death of the deceased.
NOTE BEFORE: It must be noted that where an application for grant of probate is filed, the Registrar waits for three (3) months (Lagos) or six (6) months (Abuja) for objections and caveats, if any, to be filed.
c) Proof of the Will: this goes to the validity of the will. the executor is expected to prove the Will. Where he fails, neglects or delays in doing so, a notice (Citation) can and shall be served on him directing him to prove the Will or renounce probate.
A citation shall be accompanied by a Verifying affidavit verifying the facts stated in the Citation. It must be noted that a Citation can only be issued by a person who has an interest in the estate of the testator.
The person cited (executor) must enter an appearance to the Citation within 8 daysfrom the date of service of the citation on him. He is to enter the appearance by completing and filing FORM 6 (Lagos) or FORM 191 (Abuja). See Order 49 r 58(6) Abuja; Order 58 r 27(7) Lagos.
Where the person cited fails to prove the will within the specified period which is 21 days in Lagos, in Abuja 14 days , the citor can file an affidavit to that effect and apply that he should be appointed as administrator. That is, where the executor rejects probate or fails to prove the Will despite citation, he will be deemed to have renounced probate and the interested citor can apply to be appointed as administrator.
Citation must be served personally and must be accompanied by an affidavit. An INTERESTED PARTY can cause a citation to be issued.
Where the person cited agrees to take probat, he may make an ex parte application to the Registrar for that purpose.
Where the executor fails to enter appearance within 8 days, the Citator/ propounder can ask the court to grant him probate or the court should grant another person probate or hold the will invalid.
In proving the Will, its due execution must be proved, even if witnesses have to be called. The registrar must be satisfied as to the due execution of the will and that it contains a proper attestation clause before admitting it to probate. Order 57 Lagos, order 49 r 31 Abuja.
d) Grant of probate: when the probate Registrar is satisfied that the Will was duly executed and that the testator made the Will with knowledge of its contents, the registrar would grant probate. Where a blind person made a will, there must be a blind persons Jurat
Procedure for Contentious grants (solemn form)
An application for probate is contentious when:
· The validity of the Will is contested
· The appointment of an executor is challenged
· Probate is sought to be revoked or denied
The procedure is as follows:
· Search of the will.
· Discovery, marking and reading of the Will
· Application for probate by executors
· Probate action (full trial)
· Grant or refusal of grant depending on the outcome of the probate action
All the other details are basically the same with the procedure in common form except for the following:
The documents needed to obtain a grant of probate in solemn form (contentious) and which will accompany the application for grant of probate are:
1) Application for grant of probate (whether by letter (Lagos) or Petition (Abuja)).
2) A copy of the Will
3) The Death certificate of the testator
4) Proof of identity of the applicant(s) and proof of identity of the testator such as drivers’ licence, national I.D., international passport etc.
5) Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death
6) Declaration of all the personal properties of the testator
It must be noted that where an application for grant of probate is filed, the Registrar waits for three (3) months (Lagos) or six (6) months (Abuja) for objections and caveats, if any, to be filed.
Caveat – Order 59 r 18 Lagos
Caveat is issued to challenge an application for grant of probate. An application for grant of probate becomes contentious when a caveat is filed against the application. That is, it is the filing of a caveat that makes an application for grant of probate contentious.
A caveat has the life span of 3 months in Lagos and 6 months in Abuja and probate should not be issued or granted while caveat is still in force unless withdrawn. That is, where the probate Registrar is aware that a caveat has been filed, he shall not make a grant until it is either discharged or withdrawn. See DAN-JUMBO V. DAN-JUMBO (1999) 7 SCNJ 112, while a caveat was in force and yet to be discharged or withdrawn, the registrar issued/granted probate to the will. The Court of Appeal and Supreme Court held that the act of the probate registrar was wrong. The SC stated that thee whole essence of a caveat is to give notice to the Probate Registrar to desist from making a grant of probate in until the caveat is discharged or withdrawn.
When a caveat is filed, it is to be served on the applicants to probate. The caveators are to issue the caveat in the prescribed probate form 3 or 4 (Lagos) or Form 189 (Abuja) against the applicants.
When will a caveat cease to be effective? There are four instances as follows:
· Where the caveator fails to enter appearance to a warning or citation within the prescribed eight (8) days and the Citor files an affidavit to that effect. See Order 49 r 57(11) Abuja and Order 57 Lagos. Thus once the affidavit is filed by the citor, the caveat immediately becomes ineffective
· A caveat becomes ineffective by effluxion of time after 3months (Lagos) or 6months (Abuja) unless it is renewed by the filing of further caveats. Order 49 r 57(4) Abuja, order 57 Lagos
· Where, to the knowledge of the caveator, there is a pending matter in court concerning the Will and he still goes ahead to file a caveat. Such a caveat is ineffective
· Where the caveator withdraws his caveat.
Citation (Warning) – Order 58 r 27- 29 LAG.
In addition to the other uses of a citation, in grant of probate in solemn form, a citation is process issued by an applicant for grant of probate (usually executors) making a demand on the caveator and requiring him to disclose the particulars of any interest, by entering an appearance, which he has in the estate of the testator, which is contrary to that of the citor. The citation is as in Form 5 Lagos or Form 190 Abuja.
Where citation has been issued, the caveator must enter appearance within 8 days. Failure of the executor to enter an appearance, the person issuing the citation can apply for an order granting him probate or an order that the rights of the caveator ceases. The person issuing the citation is the CITOR and the executor against whom it is issued is the CITEE.
The caveator shall enter an appearance by filing probate Form 6 (Lagos) or Probate Form 191 (Abuja) within eight (8) days from the date of service of the notice on him. See Order 49 r 58 Abuja and Order 57 Lagos. In the appearance, the caveator will disclose the nature of the contrary interests he has in the testator’s estate and why he desires that probate should not be granted to the applicant. Usually, a verifying affidavit is attached to the form to state the nature of the contrary interests.
A caveator who has not entered an appearance may withdraw his caveat by giving notice of the withdrawal to the probate registrar while a caveat to which an appearance has been made shall remain in force until the commencement of probate action.
Where there is an appearance to the citation, the dispute will be resolved in court. Pending the determination of the case, the court may grant temporary administration or limited grants pendente lite to preserve the estate. See MORTIMER v. PAUL.Either the applicant for probate or caveator can file normal court proceedings by way of writ of summons.
Where an initial grant of probate has been made and a subsequent grant is applied for or granted, such subsequent grant is called double probate. That is, where probate has been granted to an executor or some executors, this grant is regarded as first grant or original grant. When there is subsequent grant of probate, such grant is regarded as double probate. The following are the instances that give rise to double probate:
a) Where the testator appoints more than four executors and the first grant of probate has been given to the first four, then when a vacancy arises due to the death or incapacity of one of the four executors, the next executor in order of priority can apply for double probate. However, where the four initial executors have completed the winding up of the estate of the testator and have been dissolved, the other executor(s) cannot apply for double probate.
b) Where one of the executors was a minor at the time when the first or initial grant of probate was made and the initial grant was made with power for additional grant reserved for him, upon the minor attaining majority, he can apply to be granted double probate. See Order 57 Lagos and Order 49 r 34 Abuja
c) Where one of the executors could not join the other executors at the time when the first grant of probate was made because he was out of the country at the time of the initial grant, then whenever he comes back into Nigeria, he can apply for grant of double probate. Order 57 Lagos,
d) Where one of the executors could not join the other executors at the time when the first grant of probate was made by reason of mental or physical infirmity; if he subsequently recovers from such infirmity, he can apply for grant of double probate. Order 57 Lagos, 51 Abuja.
It must be noted that the first original probate and its particulars must be attached to the application for grant of double probate.
However, it must be noted that in all these circumstances, double probate will not be granted if the initial executors have completed the winding up of the estate of the testator and have been dissolved.
A DRAFT OF AN APPLICATION TO PROBATE REGISTRAR
CHAMAN LAW FIRM
Legal Practitioners, Solicitors and Arbitratos
Plot 50, Arepo Road, Arepo, Ogun State.
Our Ref: Your Ref
22nd May, 2021
The Probate Registrar
The Probate Registry
Lagos High Court
APPLICATION FOR GRANT OF PROBATE IN RESPECT OF CHIEF EMEKA DANLADI ADISA (DECEASED)
We write as solicitors to Chief Emeka Danladi Adisa who died on ......... day of ........2021. At the time of his death, he resided as 4, Ikeja Road, Ikeja, Lagos state. In his will dated ....... he appointed Mr. Kalu Ayo, Mrs.AkimadeAze as the executors to the will.
We humbly apply that probate be granted to Mr. Kalu Ayo and Mrs. AkimadeAze. Please find attached to this application the following documents
1. A copy of the Will
2. Death Certificate of the deceased testator.
Charles Chukwuma Nkwoka, Esq.
For: CHAMAN LAW FIRM
CHAMAN LAW FIRM TEAM
Tel: 08065553671, 08024200080