PROBATE PRACTICE

Question 1

What is probate?

Answer 1

It is the authority that validates the powers and functions of an executor or executors named in a will.

Question 2

What are letters of administration?

Answer 2

If a person dies without making a will or makes a will but fails to name executors in the will, then letters of administration would be granted to persons entitled to such grant to enable them administer the estate of the deceased.

Question 3

who is an ‘executor de son tort’

Answer 3

A person who interferes with the estate of the deceased person before grant of probate or letters of administration

Question 4

What liabilities may be suffered by an executor de son tort?

Answer 4

1. He is liable to pay for services rendered to the estate
2. He is liable to pay a fine
3. He is liable to pay inheritance tax
4. He is liable to render accounts for any assets he deals with in the estate of the deceased

Question 5

What are the 3 categories of grant?

Answer 5

1. Grant of probate with will
2. Grant of letters of administration with will annexed
3. Grant of letters of administration without will

Question 6

What are the two types of procedure for grant of probate/letters of administration

Answer 6

Contentious or Non-contentious

Question 7

What is the non-contentious procedure also called?

Answer 7

common form

Question 8

What are the stages in application for grant of probate?

Answer 8

Stage 1: Discovery of the Will
Stage 2: Reading of the Will
Stage 3: Application for Probate
Stage 4: Grant of probate

Question 9

what does stage one involve

Answer 9

This is the stage where search is made for the will of the deceased

1. If the solicitor of the deceased has knowledge of the deposit of the will at the probate registry, he will apply to the probate registrar, informing him of the following;
2. The death of the testator, with death certificate attached as proof
3. The fact that the deceased made and deposited a will at the probate registry, stating the particulars of the deposit
4. Names and contact details of persons who are interested or are likely to be interested in the estate of the testator
5. To fix a date and time for the reading of the Will

Question 10

What happens when a person has custody of a will and fails to deliver the document to the probate registry ( abuja)

Answer 10

If they fail to deliver the document to the proabte registrar within 14 days of having knowledge of the death of the testator, he shall be liable to a fine under the Abuja High Court Rules.

Order 48 Rule 4 High Court FCT Civil Procedure Rules 2004

S.392 Criminal Code Act provides that if any person conceals a testamentary document with intent to defraud is liable of a felony and is liable to imprisonment for 14 years

Question 11

What does stage 2 involve?

Answer 11

The probate registrar appoints a date,time and place for the will to be read to the interested persons

Question 12

What does stage 3 involve?

Answer 12

The forms and documents to be completed and filed are;

1. Application Letter
2. Death certificate of the testator
3. Oath by the executors that they will faithfully administer the estate and render accounts according to the will
4. An oath by sureties on behalf of the applicants in a specific penal sum to guarantee the administration of the estate
5. 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
6. Bank certificate from probate registrar for applicant to inquire into details of the testator’s bank accounts.
7. Inventory listing properties of the testator
8. Sworn affidavit of witnesses of the will stating that they witnessed the execution of the will
9. Passport photographs of applicants and witnesses to the will

Question 13

What does stage 4 involve?

Answer 13

Upon satisfaction of the above requirements, the Probate Registrar shall grant probate to the applicant

Question 14

What is the procedure for non-contentious cases ( letters of administration)

Answer 14

Procedure for application of letters of administration in the non-contentious case is as follows:

• Applicant submits the following completed forms and documents to the probate registrar
  1. Application for letters of administration
  2. Death certificate of the testator
  3. 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
  4. Oath for administration
  5. Statutory affidavit of next of kin
  6. An oath by sureties on behalf of the applicants in a specific penal sum to guarantee the administration of the estate
  7. A duly completed bond by the applicants to pay the debts and liabilities of the testators estate, to distribute the estate and also make inventory
  8. Bank certificate from probate registrar for applicant to inquire into details of the testator’s bank accounts
  9. Inventory listing properties of the deceased
  10. Particulars of realty
  11. Publication in a gazette or newspaper

Question 15

What notice do applicants of letters of administration need to give?

Answer 15

They need to give members of the public notice of their application for grant of letters of administration by publishing the application in a local newspaper.

Question 16

When are letters of administration issued?

Answer 16

Letters of administration will not be issued until after 21 working days of the publication.

If an objection ( caveat) is filed within the 21 working days period, it must be discharged first before any grant can be made;

Question 17

Who are the persons entitled to apply for letters of administration ( without will)

Answer 17

The following persons are entitled to grant of letters of administration in order of priority:

1. The surviving spouse
2. The children of the deceased or the issues of any such child who has predeceased the deceased
3. The deceased parents
4. Brothers or sisters of whole blood or their issue
5. Brothers or sisters of half blood or their issue
6. Grandparents
7. Uncles & Aunts
8. Creditors
9. Administrator General

Question 18

What is the order of priority when the persons entitled to grant is for letters of administration with will annexed?

Answer 18

1. Any residuary legatee holding in trust for a beneficiary under the will
2. Any residuary legatee for life
3. Any living person entitled to share of the undisposed residue
4. Any person having not interest under the will but who would have been entitled to a grant if the deceased died wholly intestate

Question 19

what is the contentious procedure also referred to?

Answer 19

Solemn form

Question 20

What is the procedure for the contentious applications of probate & letters of administration?

Answer 20

1. A caveat is filed by the person challenging the validity of the will/probate/letter of administration
2. After the caveat is served on the applicants, they will file a citation/warning in response
3. The caveator may disclose his interest by entering appearance within 8 days of service of the warning on him. If he fails to do so, the probate registrar may proceed to grant/letters of administration as the caveat will cease to be effective

Question 21

What is a caveat?

Answer 21

A caveat is a formal notice of warning given to a judge or ministerial officer against the performance of certain acts within powers and jurisdiction of the court

When it is filed, the probate registrar shall cause it to be served on the applicants to probate/letters of administration

Question 22

What cant happen when a caveat is still in effect?

Answer 22

The probate registrar will not allow any grant to be made while a caveat remains effective

Question 23

What is a warning or citation?

Answer 23

This is the process filed by the applicant for probate/letters of administration stating his interest and making a demand on the caveator to disclose any interest in the estate of the deceased which is contrary to that of the applicant.

Question 24

When does a caveat cease to be effective against an application?

Answer 24

1. After the life span has elapsed.
2. If the caveator fails to enter appearance within 8 days of service of the warning/citation, and an affidavit is deposed to that effect
3. Where a caveator withdraws his caveat within the 8 day period by giving notice of withdrawal to the registrar

Question 25

Can an action be instituted in court without following the above procedure?

Answer 25

Any action instituted in court without following the contentious form outlined above would amount to procedural irregularity, and as such, will be dismissed by the court

Dan Jumbo v Dan Jumbo

Question 26

What is double probate?

Answer 26

This is where a person applies for grant of probate after an earlier grant had been made to an executor

Question 27

In what situations would the need for double probate arise?

Answer 27

i. Where the will named more than 4 executors but probate was granted to the first 4, double probate may be applied for if a vacancy arises as a result of death or incapacity of an executor.
ii. Where an executor is an infant at the time of the initial grant of probate, he may apply for probate upon attaining maturity
iii. Where for any reason one of the executors in unavailable or is unable to take a grant, he may apply for double probate subsequently.

Question 28

What is resealing of grant?

Answer 28

If the deceased has properties in a jurisdiction outside the jurisdiction where probate/letters of administration was granted the executors or administrators of his estate have to take the grant of probate/ letters of administration to the other state, for resealing, to enable them deal with the properties in that jurisdiction.

S.2 of the Probate
( Re-sealing) Act

Question 29

What are the two types of grant?

Answer 29

General or Limited

Question 30

What is general grant?

Answer 30

There is no limitation on the authority of the personal representatives ( i.e. executors/administrators) to deal with the estate of the deceased

Question 31

What is a limited grant?

Answer 31

The authority of the personal representatives may be limited in any one of the following ways:
i. Limited as to time: i.e. where the personal representative lacks capacity at the time of grant

ii. Limited as to purpose: i.e. where the grant is made in respect of a particular purpose e.g. to commence an action in court on behalf of the estate
iii. Limited as to property: i.e. Where the grant is made in respect of a part of the estate and not all of it.

Question 32

What is pendente lite and when is it granted?

Answer 32

This is where there is a pending dispute over the will or challenging a grant previously made

Pendente lite - a grant of administration for general administrative purposes pending the end of the suit, but not for the purpose of distributing the estate
s.27 administration of estates law of lagos state

Question 33

What is a grant ad litem?

Answer 33

Where the court makes a grant solely for the purpose of commencing or continuing proceedings involving the estate it is a grant ad litem

Question 34

What is a grant ad colligenda bona?

Answer 34

Where the grant is made for the purpose of preserving the assets in the estate

Question 35

When can a grant be revoked?

Answer 35

If the grant is challenged

Question 36

On what grounds will the probate registrar revoke a grant?

Answer 36

1. Where it is discovered that the ‘deceased’ is not in fact deaf
2. Where a subsequent will or codicil is discovered which supersedes the will upon which the grant was made
3. Where it is discovered that the will upon which the grant was made was revoked
4. Where the person to whom the grant was made consents to its revocation
5. Where the grant was made while there was an undischarged caveat
6. Where the grant was made to a person to whom it ought not to have been made.