PROCEDURE FOR GRANT OF PROBATE
This depends on whether it is –
- Non-contentious grant; or
- Contentious grant.
NON-CONTENTIOUS CASES IN
PROBATE AND ADMINISTRATION
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.
PROCEDURE TO OBTAIN PROBATE AND LETTERS OF ADMINISTRATION IN
NON-CONTENTIOUS CASES
The procedure (where there is a Will) entails –
- 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.
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.
CONTENTIOUS CASES IN
PROBATE AND 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.
PROCEDURE
TO OBTAIN PROBATE AND LETTERS OF ADMINISTRATION IN CONTENTIOUS CASES
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 caveat – Order 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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