WHAT ARE THE DIFFERENCE BETWEEN TESTACY AND INTESTACY

The types of probate and their differences that you should know.

CORPORATE LAW PRACTICE IN NIGERIA

CHAMAN LAW FIRM

2/23/2022 4 min read

WHAT ARE THE DIFFERENCE BETWEEN TESTACY AND INTESTACY

The person making the will is called the testator if male and the testatrix if female and the instrument called a will is referred to as a testament also. The administrator appointed under the terms of the will is referred to as the executor as he executes the wishes of the deceased as set out in the will.

In testate succession, the executor derives his authority from the will. The Grant of Probate is not the source of the executor’s authority and the probate process merely confers or authenticates the authority of the executor, the probate process is merely procedural. Executors can take up their responsibilities immediately after the death of the deceased. This confers a great advantage since where a deceased person leaves no valid will, the administrator cannot act till he acquires a Grant of Letters of Administration which process takes about two months.

Intestacy on the other hand refers to a situation of dying without having made a will or having made a will that is subsequently rendered void or invalid. Intestacy leads to intestate succession and the rules of intestacy are intended to determine the relatives of the deceased who are entitled to inherit his property. Here only blood relatives inherit apart from the spouse. The person who dies intestate is known as an intestate. An administrator is a person appointed by the court in intestacy or in a will to manage the estate of a deceased person. The administrator is said to represent the deceased. The assets of the deceased vest in the administrator. He acquires legal title to the property and can do anything the deceased would have done e.g. sue, mortgage, sell, etc. The person who represents the deceased and acts as the administrator is also referred to as the personal representative of the deceased. However, the term administrator is usually confined to the person appointed in the event of intestacy.

Under intestacy, the Grant of letters of administration also referred to as a Grant of Representation or simply, Letters of Administration is the source of the administrator’s authority. The “administrator” is appointed by the grant issued by the court to act as the personal representative of the deceased. The Grant takes the form of an order that a particular person is to act as the personal representative of the dead person. A personal representation thus derives the power to administer an estate from the grant itself, without which there would be no power for him to represent the deceased. 

THE LAW RELATING TO TESTATE AND INTESTATE SUCCESSION

Whenever a person dies leaving property, the question will definitely arise as to how his property or estate will be dealt with by those he/she left behind. A person is normally said to have died testate if he left a Will at the time of his/her death and a person is said to have died intestate if such a person died without leaving a Will. When a person dies testate, things are a bit easier since all that his/her Personal Representative (PR) will do is to apply and obtain a grant of Probate which merely validates his Will and allows the Personal Representative/Executors to carry out or effectuate the wishes of the testator e.g. distributing the property according to the wishes of the testator. However, where a person died intestate, his personal representative will apply for Letters of Administration to deal with his estate, which might be a bit complex, hence the imperative to write or make a Will.

Sloppiness in legal drafting or dishonesty on the part of lawyers has sometimes frustrated the wishes of testators and the legitimate expectation of beneficiaries. This is so because if a solicitor either for want of due diligence or inadvertence or dishonesty fails to strictly adhere to the laws relating to Wills or testate succession, the effect could be multi-faceted varying from invalidity of the Will to denying a beneficiary of his entitlements under the Will. Besides, the Law of Intestacy may apply for want of due execution of the Will, which will have the effect of invalidity of an otherwise valid Will. Thus in preparing a Will, solicitors are enjoined to exercise enhanced care and diligence. The ability to draft and analyze the validity and effectiveness of Wills cannot be overemphasized for lawyers. The reasons for the above are not farfetched. Generally speaking, a solicitor is under a duty to ensure that:

The Will he prepares accurately reflects the client’s instructions,

The testator has capacity,

The testator has the necessary intention to make the Will,

The Will complies with the formalities required by section 9, Wills Act 1837 [1] , and

The Will is prepared with reasonable speed.

Any breach of duty in this regard will expose the solicitor to a claim for professional negligence.

Where a lawyer receives instructions from a third party like the relative of the testator who purports to act for the client, it is suggested that the lawyer should take steps to confirm the instructions with the client preferably in writing.

Note that if the client intends to make a gift inter vivos or by Will to his lawyer, or to the lawyer’s partner or a member of his staff, or to the families of any of them and the gift is substantial, either in itself, or having regard to the size of the client’s estate, or to the reasonable expectations of prospective beneficiaries, the solicitor must insist his client is independently advised as to that gift and if the client declines, the lawyer must refuse to act for him. The testator must have testamentary capacity, i.e. the capacity to make a Will – The testator must not have been under the age of 18 at the date of the execution of the Will (unless he was able to make a “Privileged Will” as a soldier on actual military service or a seaman at seas).

WRITTEN BY: CHAMAN LAW FIRM TEAM

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