Probate and Administration

Question 1

What is a Probate Action?

Order 66

Answer 1

It is simply an action that has been taken by a person or party for the grant of probate or letter of administration.

An action to invoke the grant of probate or letters of administration.

An action to declare the will of a deceased person as invalid or to determine the validity of a will.

Question 2

What is an administration Action?

Answer 2

After probate there is administration after administration there is letters of administration.

• The essence of applying for letters of administration/probate is to manage/administrate an Estate.
  -In the course of managing the estate if there is a suit or it becomes necessary to go to court for e.g. if Beneficiaries cannot agree on the distribution of an estate it becomes an administrative action because it is an action in the course of administering an estate.
  Asking administrators for account is an administration action.

Question 3

Condition precedent

Answer 3

In a Probate action where an action is for revocation or revocation of letters of administration, before you issue a writ for revocation you must file a notice to the administrator or the executors to deposit the probate/letters of administration in the Court.

Question 4

What must a potential litigant do before he issues a writ for the revocation of probate/letters of administration?

Answer 4

He must first file a notice served on the executor to deposit the will/probate/letters of administration in the Court.

Question 5

Intermeddling with property

Answer 5

where a person who is not named as an executor or appointed by the court as an administrator takes possession of, or otherwise deals with the property of a deceased person, they shall be subject to the same liabilities and obligations as an executor or administrator.

Question 6

Can a civil court handling an estate matter try the offence of intermeddling where it is alleged in the civil proceedings?

Answer 6

In Re Appau – Ct of Appeal assumed jurisdiction and determined summarily an issue of intermeddling.
[See Osei Kwaku and another v Georgina Konadu- Kusi (unreported) C. of Appeals, 22 April 2005, H1/11/2005—the court of appeal held that intermeddling is criminal and must be reported to the police for investigation and possible prosecution ousting the jurisdiction of the civil court.].
In Re Appau decision reaffirmed in Eric Akwetey Siaw and Others v. Tetteh Siaw – Sappore and Others unreported 16th June 2016 – ct handling estate matter in a civil proceeding can deal with the offence o intermeddling,

Question 7

Neglect to take probate [Order 66, Rule 4

Answer 7

where a named executor takes possession of and administers or otherwise deals with any property of the deceased and does not apply for probate within three (3) months after the death of the person, the names executor shall be liable, and if found guilty will suffer the same sanctions as an intermeddler.

Question 8

CAVEAT [ORDER 66, RULE 11]

Answer 8

A person who claims an interest in the estate of a deceased person, and who wishes to ensure that no grant of probate or LA is issued without his notice, may file a caveat.
A caveat is filed either before or after the application has been made for probate or LA, but before the grant. When a caveat is filed, it shall be brought to the notice of the court by the Registrar, and its effect is that nothing ought to be done under application until the caveator is heard.

Question 9

Order or Priority for grant of probate [Order 66, Rule 12]—

Answer 9

where a person dies leaving a will, the person entitled to grant of probate or LA, with will annexed, shall be determined in accordance with the following order:

(a) The executors named in the will;
(b) Any specific legatee, or devisee, or a creditor or personal representative of any such person;
(c) Any specific legatee, or devisee, whether residuary or specific who claims to be entitled on the happening of any contingency;
(d) Any residuary legatee or devisee, holding in trust for any other person;
(e) The ultimate residuary legatee or devisee, where the residue is not disposed of by the will;
(f) Any person who has no interest under the will of the deceased, but who would have been entitled to a grant if the deceased had died intestate (i.e. a customary successor if no will)

Question 10

Order of priority for the grant of LA

Answer 10

where a person died intestate after June 14, 1985, the persons who have beneficial interest in the estate, shall be entitled to a grant of LA in the following order:

(a) any surviving spouse;
(b) any surviving children;
(c) any surviving parents;
(d) customary successor of the deceased

See In Re Asante (deceased); Owusu v Asante [1993- 1994] 2 GLR 271

Question 11

In Re Asante (deceased); Owusu v Asante

Answer 11

the mother of an infant children of the deceased who was a concubine was joined as an administrator of the estate to protect the interest of her infant children who were beneficiaries of the estate.
The number of persons to who a grant of LA may be made, shall not exceed four (4), unless an enactment states otherwise

Question 12

PROOF OF WILL

Order 66, Rule 25

Answer 12

Proceedings taken in court to admit the Will of a deceased person to probate – signifying the Will is valid.
2 ways of proving a Will – Proof of Will in Common Form and Proof of Will in Solemn Form.

Question 13

Proof of will in common form

Answer 13

Where a will appears regular and well executed, on the face of it, and there is no dispute as to its validity. Then the will would be proved in its common form by an application for probate supported by an affidavit, deposing to the due execution and attestation of the will, and such other documents the ct may require.

Question 14

Proof of the will in solemn form

Answer 14

Where for any reasons the executors doubt the validity of the will or there is a challenge to its validity, the will must be proved in solemn form by commencing an action by writ for the court to pronounce on its validity.

Any person interested in the estate may by notice in writing request the named executors to prove the will in solemn form. The notice must contain the following particulars.

1. Name, address and description of the person
2. His interest in the estate and
3. Specific grounds for disputing the will’s validity

Question 15

Discontinuance of a probate action [Order 66, Rule 43]

Answer 15

This can only be done with the leave of the court. Upon discontinuance of the action, the court may further order a grant of probate or LA to a person entitled to.

Question 16

ADMINISTRATION ACTION

O66 r 44

Answer 16

This is an action in aid of the administration of the estate of a deceased person under the direction of the court; or for the execution of a trust created by a will under the direction of the court.
An administration action for direction on how an estate should be administered justly, may be brought for the following:
(a) any question or matter arising in the administration of the estate of a deceased person;
(b) any issue or question as to the composition of any class of persons having a claim against the estate of a deceased person; or a beneficial interest in the estate of such a person;
(c) any question as to the rights or interests of a person, claiming to be a creditor of the estate of a deceased person to be entitled under a will or an intestacy of a deceased person

Question 17

ADMINISTRATION ACTION

Answer 17

Administration action also includes actions for the grant of the following reliefs:

(a) an order requiring an executor or an administrator to furnish and if necessary verify accounts;
(b) an order requiring the payment into court of money held by a person in trust in his capacity as executor, administrator or trustee;
(c) an order approving any sale, purchase, compromise, or other transaction by a person in his capacity as an executor, administrator or trustee;
(d) an order directing a person to do or abstain from doing a particular act in the person’s capacity as an executor, administrator, or trustee;
(e) an order directing any act to be done in the administration of the estate of a deceased person.

Question 18

Parties to an administration action [Order 66, Rule 47]

Answer 18

All executors or administrators of the estate, or trustees of a trust created under a will must be made parties.
Where the action is brought as executors, administrators, or trustees, any one of them who does not consent to be made as a plaintiff, must be made a defendant.
Persons who have beneficial interests in or claim against the estate, or have beneficial interest under a trust, the subject of an administration action need not be made parties to the action; but where appropriate, the plaintiff may make such persons parties having regard to the nature of the relief claimed in the action

Question 19

LIMITED OR SPECIAL GRANTS

Answer 19

These are special grants that are made specifically to last for a period of time or to abide by the occurrence of an event.

Question 20

Lost, Damaged, or Unattainable Wills

Answer 20

—where the original Will or codicil is lost, destroyed or damaged, an application can be made to the court for the administration of a copy, draft or parole evidence. The court may make an order granting probate until the original is found or an authentic copy is found. Where a will is unobtainable (because it is in the custody of a court, or person outside the jurisdiction), duly authenticated copies may be admitted to probate until the original is produced and admitted to probate.

Question 21

Grant to persons with power of attorney—

Answer 21

where a person entitled to a grant of LA is resident outside the jurisdiction, the grant may be made to the attorney of the person for the persons use, until that person (principal) obtains a grant. The affidavit in support of such an application for the grant to the attorney shall be accompanied by the official copy of the Power of Attorney. Where the person entitled to the grant is an executor and he is outside the jurisdiction, a grant of LA with will annexed may be made to his attorney for the use of the person until the executor applies for and obtains the probate. Where there are other executors, the application will not be granted till a notice has been served on the other executors.

Question 22

Grant for the use of minors

Answer 22

where the person entitled to a grant is less than eighteen (18) years, a grant shall not be made to the person, but to his or her guardian for child’s use and benefit until the child attains the age of majority or full age. The affidavit in support of the application must show that the person entitled to the grant is not of full age.
Where a sole executor is a child, his/ her guardian may be granted administration with will annexed until the child attains full age where the grant of probate may be granted to that person.
The court may, instead of making a grant to the minor’s guardian, and make a grant to any other person it deems fit. Where one of the several executors is a child, probate may be granted to any others provided the right of the child shall be reserved on the child attaining full age.

Question 23

Persons who can be made guardians:

Answer 23

a) the child’s parent’s jointly, including adopting parents
(b) a guardian, appointed by one of the parents to be the testamentary guardian after that parent’s death, to act jointly with the surviving parent. But where there is an objection by either the surviving parent or testamentary guardian, either of them can apply to the court for directions
(c) any guardian appointed by a court of competent jurisdiction in cases where the child has no testamentary guardian, or where the guardian has died or refused to act, or where the child has no parents or persons with parental rights

Question 24

Disability grants

Answer 24

where a person entitled to a grant suffers a mental of physical disability, and as such is unable to manage his or her affairs, a grant may be made for his use and benefit during the period his disability. A grant can only be made to another person only if there are no persons entitled in the same degree as person with disability Where one of several executors is under mental or physical disability a grant can be made to the others. In the interest of the person under disability, the court may grant to a person entitled to the residuary estate if there is a will, or on intestacy to any person the court considers fit, where the person has an interest in the estate.

Question 25

Incapacity after grant

Answer 25

where a person to whom a grant is made later becomes incapacitated, the grant shall be revoked, and a new grant shall be made on application of any person interested in the estate, or any other person as the court considers fit.