PERSONAL REPRESENTATIVES, ADMINISTRATION OF ESTATE AND ASSENT IN NIGERIA
ALL YOU NEED TO KNOW ABOUT PERSONAL REPRESENTATIVES, ADMINISTRATION OF ESTATE AND ASSENT IN NIGERIA
PROPERTY LAW TRANSACTION
PERSONAL REPRESENTATIVES, ADMINISTRATION OF ESTATE AND ASSENT IN NIGERIA
Section 2 AEL. Defines who personal representatives are and they include executors and administrators. They administer the estate of the deceased. An executor is appointed by will while an administrator is appointed by the Court. PRs are those who manage the estate of a deceased testator or intestate estate.
APPOINTMENT OF PERSONAL REPRESENTATIVE.
Executors are ordinarily appointed in the Will, there are however different ways in which an executor is appointed namely:
· EXPRESS APPOINTMENT OF AN EXECUTOR: This is where the testator himself appoints the executors by naming them in his Will. Usually, to remove any doubt as to the identities of the executors so appointed, their names, addresses and occupation are also stated. The advantages of express appointment are as follows:
o It reduces the difficulty in the grant of probate
o It reduces the likelihood of disputes as such express appointments are less likely to be challenged
o It removes any doubt as the identity of the executors.
Where the executors are expressly appointed, the appointment clause could be drafted as follows:
“I appoint Mr. Arome Abu, Legal Practitioner of No 5 Adekoya Estate Benin and Mr. TheophilusMaimako, Legal Practitioner of No 3 Eto Baba Close, Jos to be the executors of my Will.”
Where the executors are also trustees, then the appointment clause should be drafted as follows:
“I appoint Mr. Arome Abu, Legal Practitioner of No 5 Adekoya Estate Benin and Mr. TheophilusMaimako, Legal Practitioner of No 3 Eto Baba Close, Jos (later called “My Trustees”, which expression shall include the trustee for the time being) to be the executors of my Will.”
· IMPLIED APPOINTMENT OF AN EXECUTOR: this is also known as appointment by tenor. Here, an appointment is not expressly made in the Will. The Will may be drafted in such a way that the personal representative are not expressly appointed in the Will, but on a comprehensive reading of the Will, it can be said that a person is a PR by reason of the functions assigned to him under the Will. For instance, where certain persons have been appointed to carry out certain duties. See IN THE GOODS OF COOK; . See also Order 57 r 10(2)(a)(ii) Lagos which provides that where the Will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the Will, to that person.
The courts may hold that there is an implied appointment where a Will requires a person to perform some tasks. Such persons may be held to be executors according to the tenor of the Will. In imputing implied appointment, the Will must evince an expectation that the person impliedly appointed must perform certain essential functions and duties. Thus, IN THE GOODS OF COOK, the testatrix stated that she desired one John Goodrick to pay all her just debts. This was held to be an implied appointment.
It must be noted that implied appointment or appointment by tenor is not advisable. It must also be noted that appointment by implication does not mean that there was no express appointment. There could be an express appointment and then another clause in the Will may make an appointment by implication.
· APPOINTMENT BY AUTHORIZATION/appointment under a power of appointment: this is also called appointment through a nominee in a Will. This is where the testator gives the power to a person to appoint executors for the Will. In this like, the executor is not directly named in the Will. That is, the testator does not directly name an executor in the Will but nominates another person in the Will to appoint an executor after the death of the testator. The testator may vest the power of appointment at the complete discretion of the nominees or may set some guidelines for the nominee to observe when making the appointment.
· APPOINTMENT BY OPERATION OF LAW: this is also known as appointment by representation or executor by chain of representation. Where the sole executor or last surviving executor dies after taking probate, but before completing the winding up of the estate of the testator, then any executor of his own Will will be regarded as the executor of the first testator’s Will so long as he obtains probate of the deceased sole or last surviving executor’s Will. That is, this is where a person is deemed to be the executor of a testator by being the executor of the Will of the last surviving executor. See section 8 AEL.
It must be noted that the second executor cannot take office as the first executor’s executor without also taking on the office of the original testator’s personal representative. Where he does not want to deal with either, he must renounce both. There is no right of election.
For this type of appointment to be valid, the chain of representation must not be broken. The chain of representation would be broken where the sole or last surviving executor:
a) dies intestate
b) fails to appoint his own executor in his own Will
c) fails to obtain probate before his death
d) renounces probate.
Another instance of appointment by operation of law is under section 10 AEL. Where a deceased died intestate, his property becomes vested on the chief judge of the state where he died until the grant of letters of administration. Pending such grant, the judge can appoint an officer of court to administer the estate. This is called administration pending the grant of letters of administration to next-of-kin.
· APPOINTMENT BY THE COURT: this could arise in the following instances:
o Appointment of administrator for an intestate estate. Those entitled are as in Section 49 AEL
o Appointment of administrators for a testate estate but there is a break in chain of representation.
o Appointment of administrators for a testate estate but no executor is appointed or those appointed are incapacitated, unavailable, or refused to act.
o Appointment of an additional executor where a sole executor is appointed and there are minority or life interests in the estate. See section 24(2) AEL.
o Where an infant is appointed as sole executor, section 29 AEL.
§ Where the personal representative applies to be substituted by a person appointed.
· SUBSTITUTIONAL APPOINTMENT: this is appointment of executors based on a condition or an event happening. It could be conditional upon the first set of executors refusing to act. For instance Fawehinmi’s will “I appoint First Trustees Nigeria Limited, a subsidiary company of First Bank of Nigeria Plc ...... as my executor and trustee. If for whatever reason my first choice of executor and trustee declines the appointment or otherwise refuses or neglects to act as such then I appoint Union Trustees Limited, a subsidiary company of Union Bank of Nigeria Plc....” Note that where there is vacancy, a substitutional executor can obtain double probate but where the first executors refused to act, the substitutional executors will obtain initial probate.
There is no required minimum number of executors to be appointed by the testator in the will and the maximum is determined by the testator. However, notwithstanding the number of executors appointed, probate can only be granted to four at every material time in order of priority as listed in the appointment clause of the testator's will.
Note that the following can be appointed as sole executors: a trust corporation and a sole beneficiary who is not a minor.
Where a testator appoints more than four persons as executors of a will, the position of the law is that probate can only be granted to four of them in order of priority and without legal incapacity while power for additional grant will be reserved for the remaining. Order of priority here is as their names appear in the appointment clause.
For administrators, maximum is four, minimum is two. However, a trust corporation can be appointed as sole administrator.
EXECUTORS DE SON TORT: these are executors who interfere with the estate pending the obtainment of probate as held in ADENIYI JONES V MARTINS. The act is however not a tort. The liability of an executor de son tort are:
· Liable to render an account to the beneficiaries and creditors
· Liable to account for items with which he has dealt with.
1. Liability to pay fine of 50, 000. ORDER 58 r 19 HCCPR OF LAGOS
2. Liability for citation where the intermeddler is an executor appointed in the Will. See In the ESTATE OF BIGGS
3. Liability for loss suffered by the estate
4. Liability for personal expenses during the period of intermeddling. An executor de son tort is not covered by the rule in Craddock v. Piper.
WHO CAN BE APPOINTED AS PERSONAL REPRESENTATIVES
· Natural person
· A trust corporation.
· A law firm which is the partners at the time can be appointed.
DISQUALIFICATION OF ACTING AS EXECUTOR
· Mentally incapable
· Guilty of testator's death
WHO MAY BE APPOINTED
· Intestacy: section 49 AEL. This is also dependent on the type of marriage which could be Monogamous or customary marriage.
NUMBER OF PERSONAL REPRESENTATIVES
NOTE: Section 24 AEL.
Probate can be granted to one person: True. This is where the applicant or executor is a trust corporation or an executor who is a sole beneficiary and is not a minor. Probate may not be given to a sole individual where there is a life or minority interest in the will. IN THE ESTATE OF LINDLEY.
The maximum number of executors to be appointed at a time to administer probate is 4 in order of priority and without legal incapacity and availability. Power of additional grant will be reserved for the remaining executors.
The minimum number of administrators to be appointed is 2 while the maximum is 4.
RENUNCIATION OF EXECUTORSHIP
This is where the executor or administrator is unwilling to act or has refused to act. This should be done after the death of the testator and not before as the power of the personal representative has not arisen. Renunciation before the death of the testator will be premature.
The renunciation must be in writing as it is an active act. ORDER 58 r 25 HCCPR LAGOS. This could be by filing form for renunciation or affidavit.
· If an executor de son tort has intermeddled in the Estate CANNOT RENOUNCE PROBATE.
Renunciation must be total and not partial as an executor cannot choose to manage a part of the estate and ignore the other – Order 58 r 25(2) Lagos; PAUL v MOODIE.
· By virtue of section 6(3) of AEL, where an individual renounces probate, every right to executorship ceases.
WITHDRAWAL OF RENUNCIATION
Renunciation can be withdrawn or retracted by an order of the court. Order 58 r 25(3) LAGOS. However, by the proviso to Order 58 rule 25(3) Lagos, it is only in exceptional circumstances that leave may be given to an executor to retract a renunciation of probate after a grant has been made to person entitled in a lower degree.Section 7 AEL.
· Note that acts done by an executor before he renounces probate still remains valid.
CESSATION OF RIGHT OF EXECUTOR(IMPLIED RENUNCIATION)
By virtue of section 6 of AEL, where an executor
Survives the testator, but dies before obtaining probate
If cited, but fails to appear to the citation
Renounces probate of the will,
His right in respect of executorship ceases wholly and the representation of the estate of the deceased testator shall devolve and be committed to another as if that person had not been appointed executor.
QUALITIES OF A PERSONAL REPRESENTATIVES.
· Availability and willingness.
· No conflict of interest
· Harmony: this is important when more than one executor is appointed. Thus executor should be someone that can work with others
· Knowledge of testator's business.
· Age: based on the presumption that an older person would die first, a younger person should be appointed as executor.
· Logistics and convenience: a person residing close to the estate of the testator would be better.(proximity)
DUTIES OF PERSONAL REPRESENTATIVES
Their duties are as follows:
It is pertinent to note that personal representatives are not trustees because they act for the benefit of the estate as a whole and not for the beneficiaries. Trustees on the other hand has a duty towards the beneficiaries. They can however act as both personal representatives and trustees.
Personal representatives may act separately when it comes to personal property. However, when it comes to realty the personal representatives must act jointly.
They must act in good faith and not be fraudulent.The administrators and his estate will be liable for conversion section 19 AEL,. NBA V KOKU
They have the duty of gathering in the estate as held in OGBE V OGBE, They determine what are assets and liabilities of the testator.
They have the duty to pay funeral expenses and debts. Funeral expenses come first.
They have the duty to take out the grant and prove the will.. This could be in common form(non- contentious grant) or solemn form(contentious grant).
The duty to distribute the legacies to the beneficiaries. UGU V TEBI. Note that the executors have the first year called executors year to ascertain the estate and beneficiaries before distributing the assets. He cannot be compelled to distribute the asset within this year unless the asset is a wasting asset. Section 47 AEL.
They have the duty to file accounts and inventories. SECTION 14 AEL. The accounts should be opened for inspection by those interested in the estate.
The duty to issue assents. Section 3 AEL.
They have a duty of care as they cannot afford to be negligent when administering the estate. Section 19 AEL.
They have a duty to give the testator a decent burial if they are aware of their duties.
They distribute the remainder of the estate.
REMUNERATION OF PERSONAL REPRESENTATIVES
The general rule is that personal representatives are not remunerated as the performance of such function is regarded as gratuitous because they should not profit from the estate except for reasonable expenses. See Re ORWELL, re Gates. There are however exceptions:
· Where there is a charging clause in the will which permits executors to charge usual fees for services rendered towards administration of the estate. See Re POOLEY
a) Under the rule in CRADOCK v. PIPER, where an executor can charge or is entitled to refund for out of pocket expenses reasonably incurred in course of administering the estate.
b) By an order of the court: this is where an application is made to court by the personal representative for an order of court entitling them to charge. The court can order that the remuneration be reasonable which should not exceed 10% of the income of the estate. See Order 59 r 10 Lagos
Powers and rights of personal representative
a) Power to postpone distribution of estate. The right to postpone must not exceed one year (executor's year) - s. 47 AEL. However, a court order can direct otherwise, such does not affect debts and when a pecuniary and general legacy are not paid within the executor's year, they attract interest until they are paid.
b) Power to sell, mortgage and lease the assets in the estate in order to raise funds for the payment of debts and liabilities. When they sell the property, they sell it in their capacity as personal representatives.
c) Power to appropriate any part of the assets in the estate towards the satisfaction of a legacy or any other interest in the estate of the deceased. The assets to be appropriated must be equal to the legacy of the beneficiary. Specific legacies or devise must not be appropriated and consent of relevant person must have been obtained - s. 44 (1)AEL
d) Power to run or manage the business or trade of the testator. The power to go into business is to be derived from the will and only the part of the estate stated to be put into business can be used. Re White
e) Power to appoint trustee(s) for infants who are full beneficiaries of the estate. this power to appoint trustee is important because the tenure of personal representative is limited as they are meant to distribute the estate and wind it up as soon as possible while a trustee can function for a long time. Trustee can be appointed for infant beneficiaries and when an annuity(s) is involved. SECTION 45 AEL.
f) Power to invest the assets in the estate of the deceased if contained in the will or as authorized under the Trustees Investment Act. Section 37(3) AEL
g) Power or Right to distress: where rents are due from a tenant or lessee of the deceased, the personal representative shall have power to distrain upon the land either at termination of lease or during the continuance of the possession of the lessee from whom the arrears accrue. Section 16 AEL.
h) Power to insure: Pending the distribution of the assets in the estate of the deceased, the personal representative has power to insure such assets. Applicable in case of will and there must be no contrary intention. An order of court stating otherwise will override the power.
i) Power to delegate: the functions of the personal representative can be performed by the personal representatives or their attorney.
j) Power of right of action: personal representative can bring an action on behalf of the estate and can take over action being prosecuted by the deceased. This does not include personal actions - s. 15 AEL. NOTE THE DOCTRINE OF RELATION BACK
SUING ON BEHALF OF THE ESTATE
An executor derives its power from the will, while administrators derive their power from Letters of Administration.
· It may be necessary to defend the estate. Executors can maintain an action in a representative capacity as executors without grant first had and obtained. However, before the conclusion of the action, they must obtain the probate to relate back to when the action was commenced and it will cure the seemingly defect at the time the action once commenced.
· Where the man died intestate, If there is need to preserve the estate of the deceased as acts of trespass is being committed against it, those entitled to grant of letters of administration being next of kin of the deceased can act in their capacity as next-of-kin and not as administrators. When they act as next of kin and an action is taken against the trespasser upon grant of letters of administration, amendment can be sought to reflect their present capacity. This is known as the DOCTRINE OF RELATION BACK.
· However if the persons entitled to the grant before the grant had acted as administrators and not next of kin, the doctrine of relation back will not apply because as at the time of the act, they had no capacity to so act and their acts prior to the grant would be deemed invalid.
· In INGALL v. MORAN, plaintiff based his claim upon his alleged representative capacity as administrator. At the date when the writ was issued, no letter of administration had been taken out and they were not taken out until two months later. The question before the court was whether in those circumstances the action was competent and it was held that it was not, that subsequent grants of letters of administration did not operate retroactively to validate the original writ which from beginning was a nullity.
LIABILITIES OF PERSONAL REPRESENTATIVES
The liabilities include
· Liability for devastavit (waste). Any thing that negates the duty of care come within this ambit.
· Liability for conversion.
· Liability for intermeddling
· Liability to creditors and beneficiaries
However personal representative may obtain relief from the above liabilities in the following instances:
· Where there is express provision in the will made by testator, protecting executor from all acts that happened mistakenly or in good faith except dishonesty and fraud, willful negligence.
· Where relief is obtained from the beneficiary or creditor affected.
· Where the relief is obtained from court upon proof that he acted honestly and reasonably
· Where he pleads limitation of action (statute barred). Creditors can only bring an action within 6 years while beneficiaries must bring an action within 12 years.This does not apply to conversion of assets by personal representatives
It is advised that the following precautionary steps be taken by Personal representatives:
1. Keep proper accounts
2. Operate a separate bank account for the estate
3. Do not pay estate money into personal account
4. Make payments by cheque
5. Obtain receipts for payments made
6. Keep and preserve duplicate copies of receipts issued
7. Avoid conflicts of interests
ACCOUNTS TO BE FILED BY PERSONAL REPRESENTATIVES
· Accounts of Administration such asMonies received
· Verifying affidavit
· Inventory of assets
· Out of pockets expenses
· Vouchers in hand of the personal representatives.
By order 57 rule 16(1) Lagos, all PRs are to file accounts of their administration every twelve (12) months from the date of the grant until the completion of the administration. However, by Order 57 rule 16(6) Lagos, if good cause is shown, the judge may extend the time for filing such accounts.
The accounts are to be filed at the probate registry. With regards to those who can inspect the accounts, Order 57 rule 16(8) Lagos provides that the accounts can only be inspected by any person who satisfies the Probate Registrar that he is interested in the administration and the estate.
Time for filing accounts:
Generally, every twelve (12) months from the date of grant or appointment till the End of execution. See order 57 rule 16(1) Lagos.
However, the court can extend the time. See order 57 rule 16(6) Lagos.
· Upon request
· End of the administration
Sometimes there may be demands when an account should be filed
· Statutory requirement
· Where there is maladministration of the estate
· Where personal representatives are being removed on any of the grounds so listed above.
· At completion
· Section 32(1) AEL.
PENALTIES/ EFFECT OF FAILURE TO FILE ACCOUNTS:
1. Liability to pay fine of 200 Naira for every day of default. This would be enforceable by distress and if distress does not work, by imprisonment for a period not exceeding six (6) months. See Order 57 rule 16(2) Lagos
2. Liability for imprisonment for not more than six months.
1) The personal representative will not be discharged from his duties.
PROCEDURE FOR THE ADMINISTRATION OF AN ESTATE IN NIGERIA
This is also known as the procedure for the winding up of an estate. The procedure is as follows:
3. Application for grant of probate or letters of administration as the case may be
4. Collation of the estate
5. Settle all just debts and liabilities of the testator/deceased
6. Distribute the estate to those entitled in line with the provisions of the Will
7. Filing of accounts
8. Discharge of the PRs and their office becomes functus officio. However, there are two exceptions under which they would be called back notwithstanding that they had been discharged and their office declared functus officio. They are:
1. Where a part of the estate not administered and distributed is subsequently discovered
2. Where any misconduct is discovered to have happened in the process of their administration.
REVOCATION OF GRANT
o Where a latter Will or Codicil is discovered which has a revocation clause or whose content is manifestly inconsistent with the former.
o Where letters of administration without Will had been granted and later found out that the deceased had a valid will.
o Where the grant was given to persons not so entitled. That is, where the grant was made to wrong persons
o Misrepresentation/false representation to the probate registrar. See EPHRAIM v. ASUQUO. If the falsehood did not have a decisive effect on the court in making the grant, the court may not exercise the power to revoke the grant. LASEKAN v. LASEKAN
o Where probate was granted while caveat was in force or where an appeal against a decision on the caveat is still pending. DAN-JUMBO v. DAN-JUMBO
o Where the testator or deceased is subsequently found to still be alive after the grant had been obtained. See IN THE GOODS OF NAPIER
o Revocation at the instance of the court for better administration of the estate
o Fraud, mistake or misrepresentation in the grant of probate
o On grounds of public policy
The effect of the revocation of a grant is that it terminates the representation of a personal representative. Any action taken out by the personal representative before revocation remains valid. However, by section 17(2) AEL, the following must be noted:
· All payments and disposition made in good faith to a personal representative before the revocation, are a valid discharge to the person making the same.
· The personal representative who acted under the revoked representation may reimburse himself in respect of any payments made by him which the person to whom representation is subsequently granted might have properly made.
See section 17(2) AEL
Finally, debts incurred by the personal representative before revocation will be settled from the estate. See section 17(1) AEL; HEWSON v. SHELLEY.
If after winding up, any asset is discovered in the estate, they will be called upon to administer the estate. Thus, when personal representative discharges his duties, he does not necessary become functus officio, but remains in abeyance.
Finally, note that a person cannot be both executor and solicitor to the estate. See NBA v KOKU. It will lead to conflict of interests.
By virtue of section 40(1) AEL, LAGOS, personal representatives should issue assent to the beneficiaries. This should be issued when realty has been given to beneficiaries.
CONTENT OF ASSENT
· It must be in writing ,it need not be by deed. In Lagos, however it is a registrable instrument and would be by deed.
· It must be signed by all the personal representatives
· It should name the beneficiary
· It shall describe the property.
When is it required? It is required for only real property.
Thus the personal representatives divest themselves of the real estate by the document called ASSENT. The following are the conditions which an assent must satisfy before it can be valid.
1) It must be in writing
2) The grant of probate must be cited
3) The property must be adequately described in order for it to be adequately ascertained.
4) The beneficiary must be adequately described
5) It must be signed by all the executors that proved the will where real property is to be vested. But where it is personal property, it must not be signed by all the executors that proved the Will.
Note that assent is only mandatorily required in the South and Lagos. In the CA states (North and East, an assent is not required. The beneficiaries take their gifts directly from the Will. See RENNER v RENNER
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