This depends on whether it is –
  • Non-contentious grant; or
  • Contentious grant.

This has to do with –
1.     All business of a non-contentious nature in matters of testacy and intestacy which are not proceedings in any court; and
2.     Grant of probate and administration by the High Court where contentious cases have been terminated.


The procedure (where there is a Will) entails –

  1. Discovery of the Will – This is the first step which depends on whether the testator has made a Will to the knowledge of his solicitor. The search may be conducted at the probate registry to ascertain whether the testator’s Will is deposited at the probate registry. The Solicitor is to apply to the Probate Registrar on the following –

(i)      The death of the testator accompanied with a death certificate as a proof.

(ii)    The fact that the testator made a Will and deposited it at the registry stating the particulars of the Will (that is, when it was deposited, etc).
(iii)  The names of the persons that are interest or likely to be interested in the estates of the testator.
Order 55 rule 4 Lagos.

     2.   Reading of the Will – The Probate Registrar is to appoint a date, time and place when the Will would be read to these persons. When those interested in the estate appears on the fixed day, time and venue, the Registrar brings out the Will in their presence, breaks the sealed wax on it and reads the Will and makes a record of the proceedings of the day – Ajibaiye v. Ajibaiye (2007) All FWLR (Pt. 359) 1321; Dan-jumbo v. Dan-Jumbo (1999) 7 SCNJ 112.

     3.    Application for probate – This is done by the executors to the Will by filing and completing the relevant forms and submitting certain documents to accompany the application to the Probate Registrar.
The basic forms/documents required to process probate are as follows
a)     An application letter to the Probate Registrar in that jurisdiction which shall indicate –
(i)             Identity of the testator by stating his name, date of birth, address, profession, marital status, names of spouse and children;
(ii)           The date and place of the death of the testator;
(iii)          That the testator was resident within the jurisdiction of the court shortly before his death;
(iv)          That the testator was found to have made a Will; and
(v)           Name of executors, if any, in the Will.
b)    A death certificate of the testator (this is mainly a death certificate issued by the National Population Commission in Form D. 2).
c)     A declaration on Oath by executors to the effect that they will faithfully administer the estate of the testator and render accounts according to the Will of the testator.
d)    An Oath or justification by sureties on behalf of the applicant in a specific penal sum to guarantee his administration of the estate.
e)     A duly completed bond by the applicants to pay the debts and liabilities of the testator’s estate, to distribute the estate and also make inventory.
f)     An authorisation by way of a bank certificate issued by the Probate Registrar to a personal representative or applicant to inquire into the details of the testator’s bank account, if any. This is the only method through which an applicant can know the contents and details of a testator’s bank account.
g)    A duly completed inventory specifically listing the properties of the testator.
h)    A sworn affidavit or attesting witnesses of the Will stating that they are witnesses to the executed Will, and if the testator was blind or an illiterate, that they were present during the interpretation of the contents of the Will to the testator.
i)      Passport photographs of the applicants and witnesses to the Will.

           4.    Granting of probate – Upon satisfaction with the requirements, the Probate Registrar shall grant probate to the applicants with the Will attached to the probate or he shall grant the letter of administration.

This has to do with –          
1.     Disputes that pertain to what document or documents should be admitted to probate;

2.     Disputes as to who is entitled take out a grant – Emmanuel v. Doherty (2009) 1 NWLR (Pt. 1123) 505; and

1.     Disputes as to whether a grant should be revoked – Igunbor v. Afolabi (2001) All FWLR (Pt. 59) 1284.

The procedure (where the grant of probate is contested) entails –
1.     Application for probate – This must have been made by a person who is either challenging the validity of the Will, or resisting the appointment of a person as executor, or seeking the revocation of the grant of probate. Such a person would object to the grant of probate.
2.     Caveat – A person would usually express his opposition to the grant of probate by filing a caveat. Where a caveat is filed, the Probate Registrar shall refer the proof of the Will to the court. The caveat is in Probate form 3 or Form 4 Lagos High Court Civil Procedure Rules. Probate is usually not granted until the expiration of three (3) months which is the life span of a caveatOrder 55 Rule 71, Lagos High Court Civil Procedure Rules. No caveat shall be effective against grant of probate on the day on which the caveat is entered – Order 55 Rule 71(7), Lagos High Court Civil Procedure Rules. The Probate Registrar shall bring to the notice of an applicant for probate the existence of any caveat, and shall not seal any probate if he has knowledge of any effective caveat to the application for probate. And to ensure that no probate is sealed in error, the Probate Registrar shall maintain an index of caveats.
A caveat shall cease to be effective under any of the following –
a)     Where the caveator (a person who files a caveat) fails to enter appearance to a warning or citation within the specified period, and the citor (the person warning) files an affidavit to that effect – Order 55 Rule 71(12), Lagos High Court Civil Procedure Rules;
b)    After three (3) months of its filing unless further caveat or caveats are entered – Order 55 Rule 71(5)(b), Lagos High Court Civil Procedure Rules; and
c)     Caveat filed by a person who had knowledge of probate action and still files caveat against grant after probate action – Order 55 Rule 71(14)(c), Lagos High Court Civil Procedure Rules.
Unless the Probate Registrar grants the leave for further caveat, no further caveat shall be entered where the previous one ceases to have effect under (a) and (c) above – Order 55 Rule 71(15), Lagos High Court Civil Procedure Rules.
3.     Citation/Warnings – The applicant for grant of probate may cite the caveator by serving appropriate warning called “the person warning” in Form 5, Lagos High Court Civil Procedure Rules, which is a warning to him to give particulars of any contrary interest which the caveator has in the estate of the testator – Order 55 Rule 71(8), Lagos High Court Civil Procedure Rules. The caveator shall enter appearance or respond by filing Probate Form 6, Lagos High Court Civil Procedure Rules. The forms are used by the caveator to disclose the nature of the contrary interest in the estate of the testator. A caveator not having interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person, may within eight (8) days of service of the warning upon him inclusive of the day of such service, or at any time if no affidavit has been filed by the person warning that the caveator has been served with the warning and has not responded, issue and serve a notice to be served on the caveator – Order 55 Rule 71(11), Lagos High Court Civil Procedure Rules.

1.     Appearance – Where a caveator wishes to respond to the warning, he is required to file an appearance to the citation or warning. In the appearance, the caveator will disclose the nature of his interest in the estate and the reason he desires that the applicant should not be granted probate. However, where an appearance is not entered, the caveator who has not entered appearance to the warning may withdraw his caveat by giving notice of withdrawal to the Probate Registrar – Order 55 Rule 71(10), Lagos High Court Civil Procedure Rules. Where the caveator fails to respond within the time stipulated, the applicant may file affidavit showing that the caveator has been cited and warned, but no summons or response has been received. Thereafter, the caveat shall cease to be effective and probate may be granted – Order 55 Rule 71(12), Lagos High Court Civil Procedure Rules. Where a probate action is commenced (whether or not any caveat is entered), the action will operate to prevent the sealing of a grant until application for grant is made by the person shown to be entitled by the decision of the court in such action.
2.     Probate Action – Where the caveator enters an appearance to the warning and discloses a contrary interest, probate will not be granted but the matter will be heard in court for grant of probate in solemn form. Where the Will is referred to the court to be proved, the propounder shall have the burden of establishing its due execution or validity or that the testator had knowledge of its content and approved it – Okelola v. Boyle (1998) 2 NWLR (Pt. 539) 533; Adebajo v. Adebajo (1971) All NLR 155.
At the conclusion of the probate trial, the Probate Registrar may or may not grant probate depending on the outcome of the action. If the court pronounces for the Will, the registrar would grant probate. However, if there is a pending appeal, probate will not be granted until the appeal is finally determined in favour of the Will or the propounder of the Will. Pending the decision of the action in court, the court has the discretion to grant a temporary administration pendete lite to preserve the estate – Mortimer v. Paul (1870) LR 2 P & D 85.

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