WHO IS ENTITLED TO GRANT OF PROBATE?

Things you should know about grant of probate.

CHAMAN LAW FIRM

3/1/202210 min read

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 the following persons in the following order of priority as provided for under Order 58 r 23 Lagos:

The executor(s) where there is a will.

Any residuary legatee or devisee holding in trust for any other person

Any residuary legatee or devisee for life

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.

GRANT OF PROBATE WHERE THE TESTATOR IS WAS 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:

1)      executors

2)      Persons entrusted with the administration of the estate by the court.

3)      Persons entitled to administer the estate by law

4)      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 IN NIGERIA

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

Procedure for non-contentious grants (common form)

The procedure is in this order: search for the will, discovery, marking and reading of the Will, application for probate, proof of the Will and grant of probate.

a)          Search for the will.

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. See Order 58 rr 1 & 2 Lagos. If the Will is the possession/custody of the testator or any other person, he is to send it the probate registry within three (3) months of his knowledge of the testator’s death. See Order 58 r 15 Lagos.

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 are reasonable grounds to believe that a person has knowledge of any testamentary document of the deceased testator, the Court may summarily order that such a person be examined or interrogated in respect of the document in court. He may be asked to produce the document within his possession. Order 48 r 6 Abuja.

b)         The probate registrar 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.

Application for probate: after the reading of the Will, the executors will make an application for probate.

In either case, the application is made to the Probate Registrar. The contents of the application for grant of probate are as follows:

i.                    Particulars of the testator: name, marital status before death, names of spouse and children,

ii.                  Date and place of death of the testator, address of the testator

iii.                That the testator was resident within jurisdiction shortly before his death

iv.                That the testator was found to have made a Will

v.                  Names OF the executors named in the Will, If any.

The documents needed to process the application to a grant of probate and which will accompany the application for grant of probate are:

         i.            Application for grant of probate (whether by letter (Abuja) or Petition (Lagos)).order 57 Lagos, 48 Abuja.

       ii.            A CERTIFIED TRUE COPY of the Will

      iii.            The Death certificate of the testator. Order 57 Lagos, 49 r 8(5) Abuja.

     iv.            Proof of identity of the applicant(s) and the testator such as drivers’ license, national I.D., international passport etc. Order 57 Lagos, 49 rule 9(2) Abuja.

       v.            Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death. Order 49 r 10 Abuja, order 57 Lagos.

     vi.            Declaration of all the personal properties of the testator

 

See Order 49 Abuja and Order 57 Lagos.

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 death of the deceased. If they fail to apply for probate within the prescribed period, they lose the right to apply except if there are special circumstances.

In this regard, by Order 48 r 1(3) Abuja, probate or letters of administration with Will annexed shall not be issued within seven (7) days from the death of the testator; and 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, by Order 57 r 1(2) Lagos, probate or letters of administration with Will annexed shall not be issued within seven (14) days from the death of the testator; and, letters of administration without Will annexed shall not be issued within fourteen (21) days from the death of the deceased.

NOTE BEFORE:  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.

C)     Proof of the Will: this goes to the validity 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 8 daysfrom 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). See Order 49 r 58(6) Abuja; Order 58 r 27(7) Lagos.

Where the person cited fails to prove the will within the specified period which is 21 days in Lagos, in Abuja 14 days , the citor can file an affidavit to that effect and apply that he should be appointed as administrator. That is, where the executor rejects probate or fails to prove the Will despite citation, he will be deemed to have renounced probate and the interested citor can apply to be appointed as administrator.

Citation must be served personally and must be accompanied by an affidavit. An INTERESTED PARTY can cause a citation to be issued.

Where the person cited agrees to take probate, he may make an ex parte application to the Registrar for that purpose.

Where the executor fails to enter appearance within 8 days, the Citator/ propounder can ask the court to grant him probate or the court should grant another person probate or hold the will invalid.

In proving the Will, its due execution must be proved, even if witnesses have to be called. The registrar must be satisfied as to the due execution of the will and that it contains a proper attestation clause before admitting it to probate. Order 57 Lagos, order 49 r 31 Abuja.

D)    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 probate. Where a blind person made a will, there must be a blind persons Jurat

Procedure for Contentious grants (solemn form)

An application for probate is contentious when:

·         The validity of the Will is contested

·         The appointment of an executor is challenged

·         Probate is sought to be revoked or denied

The procedure is as follows:

·         Search of the will.

·         Discovery, marking and reading of the Will

·         Application for probate by executors

·         Caveat

-          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 the following:

The documents needed to obtain a grant of probate in solemn form (contentious) and which will accompany the application for grant of probate are:

1)      Application for grant of probate (whether by letter (Lagos) or Petition (Abuja)).

2)      A copy of the Will

3)      The Death certificate of the testator

4)      Proof of identity of the applicant(s) and proof of identity of the testator such as drivers’ licence, national I.D., international passport etc.

5)      Affidavit stating the place and date of death of the testator and his place of domicile shortly before his death

6)      Declaration of all the personal properties of the testator

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. See DAN-JUMBO V. DAN-JUMBO (1999) 7 SCNJ 112, while a caveat was in force and yet to be discharged or withdrawn, the registrar issued/granted probate to the will. The Court of Appeal and Supreme Court held that the act of the probate registrar was wrong. The SC stated that thee whole essence of a caveat is to give notice to the Probate Registrar to desist from making a grant of probate in until the caveat is discharged or withdrawn.

When a caveat is filed, it is to be served on the applicants to probate. The caveators are to issue the caveat in the prescribed probate form 3 or 4 (Lagos) or Form 189 (Abuja) against the applicants.

When will a caveat cease to be effective? There are four instances 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. See Order 49 r 57(11) Abuja and Order 57 Lagos. 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. Order 49 r 57(4) Abuja, order 57 Lagos

·         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.

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.

The caveator shall enter an appearance by filing probate Form 6 (Lagos) or Probate Form 191 (Abuja) within eight (8) days from the date of service of the notice on him.  See Order 49 r 58 Abuja and Order 57 Lagos. 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 while a caveat to which an appearance has been made shall remain in force until the commencement of probate action.

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. See MORTIMER v. PAUL.Either the applicant for probate or caveator can file normal court proceedings by way of writ of summons.

 WRITTEN BY: CHAMAN LAW FIRM TEAM

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