Probate practice deals with the procedure of 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.
It is noteworthy that there are basically three (3) types of grants in administration of the estate of a deceased. They are:
1) Grant of Probate (Will + Executors): this is granted 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.
2) 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 for probate). 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.
3) Grant of simple administration – 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.
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.
• PROBATE REGISTRY IN NIGERIA
Probate is usually granted upon an application made to the Probate Registrar by an interested person, either personally or through his legal practitioner.
In Lagos or Rivers state, all applications for grant of probate or letter of administration shall be made to the Probate Registrar of the High Court in that State. The same process is followed in Abuja, where similar application must be made to the Registrar of the High Court of the Federal Capital Territory.
• TIME OF GRANT
In Abuja, probate or letters of administration with Will annexed shall not be issued within seven (7) days from the death of the testator; and, probate 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, 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.
• 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 some other persons in the order of priority as provided for under the law.
• PROBATE LAWS IN NIGERIA
The law which regulates the estates of the deceased persons is the Administration of Estates Laws of the states of the federation of Nigeria, while the procedure for the grant of the right to administer the estate of deceased persons is governed by the High Court (Civil Procedure) Rules of each state of the federation.
The Administration of Estates Law of Lagos State was a result of adoption of a similar Administration of Estates Law of Former Western State of Nigeria.
The Administration of Estates Laws and the Probate Rules of Procedure are made with the intent to forestall the properties left behind by deceased persons from falling into the hands of unscrupulous persons and particularly those the deceased would not ordinarily wished to inherit his or her properties.
The Administration of Estates Laws do not apply to the distribution, inheritance or succession of the Estate of a deceased person, whose affairs were regulated by customary law during his or her lifetime. The Administration of Estate laws in Nigeria provides a legal system of administration of the estate of the deceased persons, which entails the verification of the claims of persons claiming to be entitled to the estate of deceased persons and subsequently grant the authority or power to administer the estate to the persons who have passed through the verification process at the Probate Registry.
• PROBATE SERVICES IN NIGERIA
• Grant of probate where the testator is 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:
b) Persons entrusted with the administration of the estate by the court.
c) Persons entitled to administer the estate by law
d) 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
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
1. Procedure for non-contentious grants (common form)
The procedure is in this order: discovery, marking and reading of the Will, application for probate, proof of the Will and grant of probate.
i. 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. If the Will is in the possession/custody of the testator or any other person, he is to send it to the probate registry within three (3) months of his knowledge of the testator’s death.
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 testator, the Court may summarily order that such a person be examined or interrogated in respect of the document in court.
The probate register 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.
ii. 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 LETTER, while in Abuja, the application is by way of PETITION. In either case, the application is made to the Probate Registrar. The CONTENTS of the application for grant of probate are as follows:
• Particulars of the testator: name, marital status before death, names of spouse and children
• Date and place of death of the testator
• That the testator was resident within jurisdiction shortly before his death
• That the testator was found to have made a Will
• That the applicants are the executors named in the Will.
The documents needed to obtain a grant of probate and which will accompany the application for grant of probate are:
• Application for grant of probate (whether by letter (Lagos) or Petition (Abuja)).
• A copy of the Will
• The Death certificate of the testator
• Proof of identity of the applicant(s) and proof of identity of the testator such as drivers’ licence, national I.D., international passport etc.
• Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death
• Declaration of all the personal properties of the testator
• Affidavit of due execution and affidavit as to handwriting, if applicable.
• Bank certificate
• Duly completed inventory specifically listing the properties of the testator
• Passport photographs of the executors and attesting Witnesses.
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 day of death of the deceased. If they fail to apply for probate within the prescribed period, the Executors maybe subjected to fines by the court.
It must be noted that where an application for grant of probate is filed, the Registrar must wait for certain period for objections and caveats, if any, to be filed by any interested person in the estate.
iii. Proving 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 eight (8) days from 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).
In proving the Will, its due execution must be proved, even if witnesses have to be called.
iv. 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 the probate.
2. Procedure for Contentious grants (solemn form)
An application for probate is contentious when:
a) The validity of the Will is contested
b) The appointment of an executor is challenged
c) Probate is sought to be revoked or denied
The procedure is as follows:
– Discovery, marking and reading of the Will
– Application for probate by executors
– Publication of the application for grant of probate
– Appearance to citation/warning
– 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 few additions.
The documents needed to obtain a grant of probate in solemn form (contentious) and which will accompany the application for grant of probate are:
i. Application for grant of probate (whether by letter (Lagos) or Petition (Abuja)).
ii. A copy of the Will
iii. The Death certificate of the testator
iv. Proof of identity of the applicant(s) and proof of identity of the testator such as drivers’ licence, national I.D., international passport etc.
v. Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death
vi. Declaration of all the personal properties of the testator
vii. Affidavit of due execution and affidavit as to handwriting, if applicable.
viii. Bank certificate
ix. Duly completed inventory specifically listing the properties of the testator
x. Passport photographs of the executors and attesting Witnesses.
xi. Caveat Form
xii. Citation/warning as in Form 5 (Lagos) or Form 190 (Abuja)
xiii. Notice of appearance as in Form 6 (Lagos) or Form 191 (Abuja)
xiv. Writ of summons
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 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.
When a caveat is filed, it is to be served on the applicants to probate. The applicants are to issue a WARNING or CITATION in the prescribed form 5 (Lagos) or Form 190 (Abuja) against the caveator. The citation being served on the caveator is to ask the caveator to state his interest and claim under the will.
A caveator is to enter appearance within 8 days of service of the citation on him. Notice of appearance is in probate Form 6 (Lagos) and Form 191 (Abuja). A caveator may however decide not to enter appearance and withdraw his caveat.
Once an appearance has been entered, the hearing would then take place. Until the matter is fully heard, probate would not be granted to the applicant. It is the issuance of caveat that determines whether probate will be granted in solemn form. Any probate granted after hearing of caveat entered is probate in solemn form.
When will a caveat cease to be effective?
There are four instances where a caveat ceases to be effective 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. 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
– 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)
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.
• Appearance to Citation
The caveator shall enter an appearance by filing necessary probate Form within eight (8) days from the date of service of the notice on him. 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.
• 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.
It is worthy of note that where the executors have complied with the above normal requirements, a Probate Registrar will grant probate to the applicants. With the PROBATE, the executors can then administer, manage, share, sell, lease and use the property of the deceased as if they were the deceased himself; because they have stepped into his shoes.
Where executors are different from beneficiaries, such executors upon obtaining a grant of probate are equally empowered to share, devolve, vest, transmit and transfer the property of the deceased to his beneficiaries according to the deceased’s WILL.
Finally, it is important to note that on any deceased assets, which involve land in Lagos State and most states of the former Western Region of Nigeria, executors can only transfer/vest the ownership of the property of the deceased to his or her beneficiaries through a “DEED OF ASSENT”. And anyone that tampers with property of a deceased person without a “Probate” or a “letter of administration” can incur to himself or herself both criminal and civil liabilities.
Written by Family Law Team at Resolution Law Firm, Lagos, Nigeria
Email: [email protected]