OVERVIEW OF LETTERS OF ADMINISTRATION IN NIGERIA
Letters of administration serve as the origin of powers of administrators. They are granted for simple administration where the deceased died wholly intestate; or where there is partial intestacy or where no executors where appointed under the Will. Note that partial intestacy arises where there is a Will and some of the gifts under the Will fail or some of the testators properties are not covered by the Will and there is no residuary clause in the Will: (note that where there is partial intestacy, two grants will be made). The instances for grant of letters of administration are:
· Letters of administration without will
· Letters of administration without will, de bonis non
· Letters of administration with will annexed
· Letters of administration with will annexed de bonis non
At the time of the death of a deceased, the deceased’s estate is vested in the Chief Judge of the state where he died. This is where the deceased died intestate and the administrators cannot act without letters of administration – s. 49 Administration of Estate Laws
LETTERS OF ADMINISTRATION WITHOUT WILL
Application for letters of administration in this regard is where the deceased died intestate without making any will. Here, the law specifies the categories of persons that can apply for a grant.
Categories of person that can apply for letters of administration
Section 49(1) AEL, Lagos state laid down the persons that can apply in order of priority and where they are of equal priority, the court has discretion to select any who in its view is most suitable. These persons are generally called NEXT-OF-KIN of the deceased thus generally, it is the next-of-kin of the deceased that is entitled to apply for letters of administration and they are:
· Surviving spouse(s) of the deceased
· Children of the deceased or the issues of such children that predeceased intestate.
· Parents of the deceased
· Brothers or sisters of the deceased of full blood or the children of such brother or sister who died in the life time of the deceased. See TAPA v KUKA
· Brother or sister of the deceased of half-blood or the children of such brother or sister who died in the life time of the deceased
· Grandparents of the deceased
· Uncles and aunts of full blood or their children
· Creditors of the deceased
· Administrator general
See section 49 of the AEL
Letters of administration without Will de bonis non – s. 28 AEL
This is an application where a letter of administration had earlier been granted however, the original grantee did not conclude the administration of the intestate estate. The letters of administration without will de bonis non when granted will help the subsequent grantee to conclude what the first administrator/grantee did not conclude.
Letters of administration with Will annexed
Here, the testator died leaving a Will, but one or more of the following circumstances exist:
· No executor was appointed in the will
· A sole executor who is a minor is appointed
· Executor(s) appointed renounce probate.
· Executor(s) appointed in the will predeceased the testator.
· Where the executors appointed die before taking out probate.
· A sole executor appointed becomes incapable to act by reason of mental and physical infirmity. See IN THE GOODS OF COOPER
· Where there is break in chain of representation either because the sole executor or last surviving executor dies intestate or without appointing an executor.
· Where the appointment of an executor is void for uncertainty. See IN THE GOODS OF BLACKWELLL
BREAK IN CHAIN OF REPRESENTATION
The chain of representation is broken where the sole executor or last surviving executor:
· Dies intestate
· Fails to appoint executor in his will
· Fails to obtain probate
· He renounces probate.
In this regard, those entitled to apply for the letters of administration are as listed in Order 58 r 23 Lagos as follows:
a) The executor(s)
b) Any residuary legatee or devisee holding in trust for any other person
c) Any residuary legatee or devisee for life
d) 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.
PROCEDURE FOR GRANTING LETTERS OF ADMINISTRATION IN NIGERIA
Letters of administration is granted upon application by a person entitled either personally or through his legal practitioner to the Probate registrar. Usually forms are issued to the applicant, to be returned, upon completion, to the probate registry. Where the legal practitioner makes the application, his
Grant of letters of administration with will attached would not be made within three (14) days Lagos) or seven (7) days (Abuja) from the death of the testator.
Every application for grant of letters of administration are usually published to allow for objections and the filing of caveats.
It must be noted that letters of administration cannot be transferred or inherited. See DUKE v ADMINISTRATOR GENERAL OF RIVERS STATE (2010)
Note that as a general rule, one person cannot be granted letters of administration. It can only be granted to at least two people. The only exception is where a Trust Corporation or the administrator general is appointed as sole administrator.
a) Application to the probate registrar. The letter should contain the following
· Full names of the deceased
· Date of death of the deceased
· Place of residence of the deceased shortly before his death
· Name of proposed administrators
b) The application should be accompanied with the death certificate. Upon submission of the application, then forms will be given. The forms are
· Oath of Administration by the applicants
· Particulars of landed property left by the deceased
· Administration Bond to ensure that the grantee makes proper inventory, distributes the estate accordingly and pays out of all just debts.
· Affidavit/Declaration as to next-of-kin
· Bank certificate
· Passport photographs of applicant
· Justification for sureties
· Schedule of debts and funeral expenses
c) The forms upon filling them would be submitted
d) Publication would be made in the gazette or newspaper. This, in essence, is to invite and give the public or any interested person the opportunity to object and file a caveat to the grant of letters of administration to the applicant
e) Objection is to be raised within specified period for filing a caveat
f) Once no objection, upon the payment of the estate duties, the letters of administration would be granted
Letters of administration with Will annexed de bonis non
This is where the grantee under the letters of administration with will annexed did not conclude the administration of the estate, thus a fresh application is being madero complete the administration of the estate.
INSTANCES WHERE PROBATE OR LETTERS OF ADMINISTRATION WOULD BE REFUSED:
Both Probate and letters of administration would be refused in the following instances:
· Where the applicants are not executors for probate or are not within the category of next-of-kin for grant of simple administration or are not within the category in order 58 rule 23 Lagos for grant of administration with Will annexed.
· Where the applicant is an Infant or of unsound mind or otherwise lacks mental capacity
· Where the applicant is responsible for the death of the deceased. That is, on grounds of public policy
· Where the applicant is outside the jurisdiction or is otherwise unavailable
· Where the applicants failed to file the necessary documents
· Where the testator/deceased is found to still be alive
· Where applicants are not persons with the best interests of the estate
· Where the application is against public policy
· Where there is still a pending suit in respect of grant.
There are circumstances where special grants would be given to certain persons. These grants are:
· Grant Durante absentia:if at the expiration of twelve months from the death of a person, the personal representative of the deceased to who, a grant has been made is residing outside the country.This is also granted to creditors):
where a grant has been made but the administrator leaves Nigeria or remains outside Nigeria for a continuous period of twelve (12) months or more, a special grant Durante absentia can be made usually in favour of creditors to enable realise their interests. See Order 49 r 67 Abuja.
The application for this special grant can be made by a creditor or any other person interested in the estate of the deceased. See IN THE GOODS OF ROSE
Summarily, the special grant Durante absentia is granted during the absence of the administrator.
a) Grant Durante Dimentia (that is grant during mental or physical incapacity): This is a grant made to another person where the person entitled suffers incapacity as a result of mental or physical infirmities
b) Grant ad litem – Order 13 r 15 Lagos provides that where there is a litigation against estate of deceased and such is not represented, the court can appoint a person to represent the estate in litigation to continue proceedings.
c) Grant Pendente Lite. This is grant whereby a personal representative is appointed to administer the estate of the deceased pending the determination of a suit over a Will or entitlement to the grant. See section 27 AEL lagos. Administrator pendente lite has the same power as any other administrator except that he cannot distribute the residue of the estate. He is essentially appointed to preserve the estate.
He need not have any interest in the estate, and his remuneration is as fixed by the court which appoints him and to whom he is answerable. He can only be appointed when there is a suit pending. See KUNLE LADEJOBI v. ODUTOLA HOLDINGS LTD
d) Grant ad colligenda bona. This is a grant to preserve and protect the estate where perishable goods are involved. That is, for the preservation of perishable goods. See Order 60 r 17 Lagos and Order 49 r 64 Abuja
· Grant de bonis non: this occur where a previous grant had been and either the grantees are dead in case of Administration before the completion of Administration or where there is break in the chain of representation before the completion.
e) Grant pending the grant of letters of administration. s. 10 AEL: between the death of the deceased and the grant of letters of administration, the CHIEF JUDGE is statutorily empowered to administer the estate. See section 10 AEL. The chief judge can appoint an officer of the court to take possession of the properties of the deceased person pending when they can be dealt with according to law. It is also essentially granted for the preservation of the estate.
f) Administration by an attorney: a person entitled to grant of administration can appoint an attorney to apply for grant of letters of Administration on his behalf if the following conditions are satisfied:
. The person entitled must be unavailable. (that is outside Nigeria)
a. He must have appointed a capable attorney.
g) Administration by the Administrator-General: the administrator general will administer the estate in the following four instances:
. When the estate is unrepresented. An estate would be said to be unrepresented if:
. Executors or administrators are absent from Nigeria without having an attorney;
i. The deceased died intestate and his next of kin is unknown or is absent from Nigeria without having an attorney
ii. The deceased died testate but those that are to act are unknown or refuses to neglects to act for more than one (1) month after the death of testator
iii. Where the chain of representation is broken. That is, where the last surviving executor died intestate (without appointing an executor).
- When the estate is exposed to the danger of misappropriation, waste or deterioration
- Where theagents in charge of assets of a person not residing in Nigeria or a company not incorporated in Nigeria dies or winds up without leaving a responsible person in charge of the assets.
- Where the testator appoints the administrator-general as sole executor. See section 2 AEL.
REVOCATION OF GRANT OF PROBATE OR LETTERS OF ADMINISTRATION.
The following are the circumstances where the above grants can be revoked
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. 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
Resealing of grants
Generally, probate or letters of administration are granted in respect of properties within the jurisdiction of the State where it was granted. Accordingly, if the testator or deceased had other properties outside the State and the executors/administrators want to deal with those other properties, they cannot do so unless the grant of probate or letters of administration is resealed in the High Court of the State where the property is situate. See section 2 of the Probate Resealing Act which provides that where the HC of a State has granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on being produced to, and a copy thereof deposited with the High Court of any State, be resealed with the seal of that Court. It must be noted a probate or letter of administration granted in any commonwealth country may also be resealed in Nigeria. See section 1 Probate (Resealing) Act.
The personal representatives only have powers over properties in State where grant was given and they lack Locus Standi to institute action in respect of property outside the State unless grant is resealed. See FEDERAL ADMINISTRATOR-GENERAL v. ARIGBADU.
Section 3 of the Probate Resealing Act provides the conditions to be fulfilled before probate or letters of administration would be resealed. They are:
a) The probate duty (estate duty) has been paid in the value to which such estate is liable to probate duty in that state; or in the case of letters of administration, security must have been given in an amount sufficient to cover the property.
b) The court may require evidence of the domicile of the deceased.
Resealing is regulated by the High Court (Civil Procedure) Rules. Application is to the Probate Registrar where the property is located and it would be accompanied by:
· CTC of the first grant of probate or letters of administration
· Copy of the Will, where applicable
· Sworn STATEMNET by applicants.
· Tax clearance certificates of the applicants
· Evidence of payment of prescribed fees
Upon submission of application with relevant documents, the following forms are to be filled and returned by applicant.
Ø Application form for resealing
Ø A tax clearance certificate
Ø Oath for resealing
Ø Bank certificate
Ø Inventory particulars of landed properties of deceased
Ø Bond for resealing
Ø Justification for sureties (where necessary)
Under Order 58 r 26(5) Lag, no limited or temporary grant shall be resealed except by leave of the judge. Application for resealing is to be published/advertised in a manner prescribed by the judge.
Note that all the administrators or executors must join in the application for resealing. See ARUWAJI b. ASABORO
Sureties are required for a resealing except in the following instances:
1) Where the original grant was made to:
a. A creditor
b. Next of kin
d. For the use or benefit of a minor
e. For the use or benefit of a person of unsound mind
See Order 58 rule 26 Lagos.
By section 6 of the Probate Resealing Act, the effect of the resealing of a grant is that Probate or letters of administration which are duly resealed has the like force and effect and have the same operation in the state where it was resealed, as if it was granted by the High Court of that State. The properties of the testator or deceased in the resealing State thus become subject of administration by the personal representatives. See section 6 Probate (Resealing) Act
DRAFTING OF APPLICATION FOR RESEALING OF A GRANT
CHAMAN LAW FIRM
Legal Practitioners, Solicitors and Arbitratos
Plot 50, Journalist Estate Road, Arepo, Ogun State
Tel: 08065553671, 08024200080
Our Ref: Your Ref
22nd May, 2021
The Probate Registrar
The Probate Registry
Ogun High Court
APPLICATION FOR RESEALING
We refer to the above subject matter. We are solicitors to the late Mr. KayubaAdeobi of 7, Oyo Road, Lagos who died on 10th June 2020 at the Lagos Teaching Hospital.
Sir, by a grant given to Mr. UyoAdaobi and MrsAgiAdeobi ion the 12th July 2012 by the Lagos High Court Probate Registry, they were appointed administrators.
Sir the deceased has property at 7, Oyo Street, Ogun state and we hereby apply for resealing of the letters of administration. Please find attached the following documents
· A copy of the letters of administration
1) Sworn statement of the applicant
2) Evidence of payment of the prescribed fees
3) Tax clearance certificate
Charles Chukwuma Nkwoka, Esq.
For: Chaman Law Firm
CHAMAN LAW FIRM TEAM
Tel: 08065553671, 08024200080