Outcomes

 

At the end of the lesson, students would be able to:

1. State when application for probate and letters of administration (L.A) is non-contentious, and contentious
2. State the procedure to obtain probate (non-contentious and contentious cases, including need for double probate)
3. State when caveat may cease to be effective against application for probate or L.A
4. Mention the documents required to process probate
5. Draft (letter of application) and fill documents required to process probate
6. Explain the procedure to obtain letters of administration (non-contentious and contentious)
7. Mention the documents required to obtain letters of administration
8. Fill the documents required to obtain letters of administration
9. Identify ethical issues arising from process of obtaining probate

10. Discuss the following cases and appreciate their relationship to probate practice: Obusez v Obusez [2007] 10 NWLR (pt. 1043) 430, NBA v KOKU (2006) ALL FWLR (pt.334) 1928; Dan-Jumbo v Dan-Jumbo (1999) 7 SCNJ 112; OKON V ADMINISTRATOR-GENERAL (CROSS RIVER STATE) [1992] 6 NWLR (Pt. 248) 473; and IGUNBOR v. AFOLABI [2001] 11 NWLR (PT. 723) 148.

 

Contents

1. Grant of Probate (Non-contentious and contentious probate)
2. Grant of Letters of Administration
3. Procedure for obtaining probate in either case
4. Procedure for obtaining Letters of Administration
5. Documents to process probate and letters of Administration

6. Studying the cases: Obusez v Obusez [2007] 10 NWLR (pt. 1043) 430, NBA v KOKU (2006) ALL FWLR (pt.334) 1928; and Dan-Jumbo v Dan-Jumbo (1999) 7 SCNJ 112; OKON V ADMINISTRATOR-GENERAL (CROSS RIVER STATE) [1992] 6 NWLR (Pt. 248) 473; and IGUNBOR v. AFOLABI [2001] 11 NWLR (PT. 723) 148.

 

Grant of probate & Letters of administration

Probate practice deals with the procedure for the grant of probate and letters of administration both in contentious and non-contentious cases

Probate practice has three aspects:

• Appointment of people as executors to manage his property – wholly testate
• Where the man dies intestate, without a will – fully intestate
• Where the will does not cover all his property or the will does not include a residuary clause – partially intestate

 

Steps that executors/ administrators have to take in order to manage the affairs of the deceased

There are 3 major grants in respect of a deceased estate.

• Probate
• Simple letters of administration otherwise known as letters of administration without will attached
• Letters of administration with will attached

 

Probate is granted to a person who is duly appointed as an executor, no other person can be granted probate. Where executors cannot apply because they’re legally incapable, people can apply on their behalf or they (executors) can delegate people to apply on their behalf but what is granted cannot be probate. Probate is personal and can only be granted to executors under a will. For there to be a grant of probate there has to be a valid will, + duly appointed executor who is legally capable, available and willing. Probate is mere judicial confirmation of the authority/power of the executor to carry out the provisions of a will. Authority of an executor comes from a will.  Application is made to the probate registry – s.20 of AEL, Lagos. S.21 Succession Law (Anambra)

 

Simple administration – this applies where a man did not make a will at all or made a will that failed or does not cover his entire estate. A will is said not to cover the entire estate of the deceased where there is no residuary clause. In simple administration the next of kin would apply for letters of administration. If there is a residuary clause the man died wholly testate. The executors cannot administer properties that are not contained in a will, they don’t have the authority to administer it. Their rights don’t extend to the partial intestacy of the man. When a man dies power of administration lies with the chief judge and that’s why letters of administration have to be applied for – s 10 administration of Estate law, Lagos, see also s 4. Administrators get their authority to administer the intestate mans estate from the letters of administration.

 

Letters of administration with will annexed – this is used where the man left a valid testamentary document and either that he did not appoint executors or those he appointed are incapable, or not willing or not available to assist. For the purpose of probate practice a man is deemed not to be available where he is out of your country. In this instance, there is a will but no valid person to administer it, here the next of kin also known *residuary legatees would apply. 

 

Applicable laws

• Administration of estate laws of the various states of the federation
• Wills act, 1837, as amended by the will act (amendment act) , 1852
• LPA
• RPC
• Personal Income Tax law
• Wills law of the various states;
• High court rules of the various states
• Case law/judicial precedents
• Marriage act
• High court law, cap 60 Laws of Lagos state (s.16)
• 1999 Constitution of the Federal Republic of Nigeria

 

Grant of probate or administration of estate may be:-

• General – made to cover all assets in the estate & for all purposes; or
• Limited – as to purpose, property or time. –

 

Time of grant/ time to apply for probate

• Probate will not be granted until after 14 days of the testator’s death. No application of probate shall be entertained until the expiration of 14 days of testators death - order 58 rule 1(2)
• Administration with the will attached will not be granted until after 14 days of the deceased death/ testator’s death; and no grant of administration without the will annexed shall be issued within 21 days of such death. Order 58 rule 1 (2)

 

Types of probate

1. Probate in solemn form (contentious grant) – where probate is granted after there has been an opposition or challenge to it, it is called probate in solemn form.

It may challenged on the following reasons: the man did not leave a valid will, he made a valid will but he did not appoint anyone to be his executor, or he appointed executor but they are all dead etc.

Grant is said to be contentious where:

• Validity of the will is contested
• Appointment of executors is contested
• Grant already made is sought to be revoked
• Application for a grant is sought to be denied

2. Probate in common form (non-contentious grant): where there is no dispute over the grant; no caveat or objections.

 

Those entitled to grant of probate

• Only executors validly appointed under a valid will can apply for grant of probate
• Any application by any other persons not being executors under a valid will, would be administration (either with or without will annexed)

 

NOTE

• The position in Abuja and Lagos where two or more persons are entitled in the same degree to grant of probate
• Where there is a dispute as to the grant of probate amongst persons having the same degree of entitlement
• Where testator was domiciled and dies outside jurisdiction

See Order 58 rule 23 Lagos gives the order of priority:

1. The Executor; 

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

3. Any residuary legatee or devisee for life; 

4. The ultimate residuary legatee or devisee, 


 

The position of the law is that when a man/woman dies any person who has custody of any testamentary document belonging to the deceased must within 14 days in Abuja and 3 months in Lagos deliver that copy to the probate registrar. Note that there are penalties for non-compliance. See order 58 r 15 Lagos

Consequences for non–compliance

There are both penal and civil sanction for non-compliance.

1. i) In Lagos you’re liable to a fine of N50,000 – O 58 R 15 Lagos ii) if they’re sure you’re with it they can order you to produce it O 58 R 16 Lagos iii) if they’re unsure the person is liable to be summoned by the court for the purpose of cross examination or interrogation, and after this if it is found to be with them they can be ordered to produce it see order 58 rule 17 Lagos

Procedure for grant of contentious probate

• Discovery of the will
• Application for probate
• Proof of will
• Caveat (if any) – entering an objection to an application for grant of probate. Life span is 3 months – no grant of probate until caveat disposed of. Note when caveat ceases to be effective.

Caveat means opposition to the probation, in Lagos its filed in form 3 (when filing personally) or form 4 (when filing through a LP). It is an instrument used to register your opposition to an application for probate or letters of administration. A person filing a caveat is called a challenger. Lifespan of a caveat in Lagos is 3 months, and once filed it served on the applicant (the propounders) who must file a response which is a citation/warning and the probate registrar suspends all acts on the application on probate

 

When a citation is filed to tell the named executor who has failed or has neglected to discharge his responsibility, to do the needful or wake up and act/take steps, the executor can either wake up from the slumber and act or he can file a renunciation form. Note the two different citations, the other is an applicants/propounders response to a caveat saying the caveator should come and show why they shouldn’t be granted probate and establish their interest in the matter. The moment the caveator enters an appearance the probate registrar then forwards the matter to a probate judge , who will then order the parties to file and exchange pleadings and probate action will be commenced and determined in court .

 

Meaning of terms

Note: index of caveats to be kept at the registry

Probate action – after an appearance to the citation, either party may commence a suit by way of writ of summons. Probate registrar disposes of suits on executors; bur if it involves challenge to validity of the will, the court will handle it - OKELOLA V BOYLE; ADEBAJO V ADEBAJO

Citation – notice of warning for a caveator to establish the nature of his interests in the estate. Citation is filed in form 5

Appearance to citation – to be done within 8 days of being served with citation. Appearance to citation is filed in form 6. Note the consequences of failure to enter an appearance – the consequence is that the citors/ propounders /applicant would then depose to an affidavit stating that the person has refused to enter an appearance to the citation and 8 days has passed/expired and once that affidavit is filed in court, the caveat becomes ineffective, it need not be served on the caveator. So failure to enter/ file an appearance would lead to ineffectiveness of the caveat, the caveat dies. He who asserts must establish.

 

Note: pending conclusion of the probate action, court may grant temporary administration (administration pendent lite) to preserve the estate. Mortimer v Paul (1870). But the grant ceases on conclusion of the action – TAYLOR v TAYLOR

 

When does a caveat cease to be effective

1. Where a person files a caveat and is cited and fails to enter an appearance. If the executors file an affidavit stating that fact, one of the consequences is that the caveat ceases to be effective
2. Where a person who files a caveat, withdraws it
3. Caveat that is not renewed after the expiration of its lifespan ceases to be effective.

Note: In Lagos the lifespan of the caveat is 3 months, while in Abuja its 6 months. The life span of a caveat is renewed by filing a further caveat

4. Where a probate action is pending, a caveat cannot be filed. Any caveat filed where a probate action is pending is ineffective abinitio

 

Procedure for non-contentious probate (common form)

1. Discovery of the will
2. Application for probate
3. Proof of the will – Note when and why citation is entered here:
4. Grant of the probate

 

Note that the question “What are the documents required for the purpose of processing an application for probate” is different from “what are documents that will accompany an application for probate”

 

Documents required to be submitted at the time of applying for probate/ to process an application for probate

• Letter of application
• Copy of the will
• Death certificate of the testator
• Proof of identity of the applicant(s) and of the testator
• Affidavit stating the date and place of death of the testator and his place of domicile shortly before his death showing he was domiciled within the jurisdiction .

These five are mandatory for probate 

• Declaration of all personal properties of the testator
• Note: additional documents may be required where necessary – e.g. Oath of executor; bank certificate; citation form, notice of appearance

 

Letters of administration

Letters of administration is required in the following circumstances (types of grant)

1. Total intestacy – that is deceased died leaving No will. Here the type of grant is called simple administration
2. Partial intestacy – testator left a will but did not cover the entire estate or in respect of gifts that failed where there is no residuary clause. The purpose of the residuary clause is to save the estate from partial intestacy
3. Administration with will annexed – where there is a will but for one reason or another, probate cannot be granted. May arise where –
4. No executor is appointed under the will
5. The executor appointed dies before the testator
6. The executor renounce probate
7. The executors become incompetent or incapacitated – Goods of Cooper (1869)
8. **The appointment of the executors is void for uncertainty: Goods of Blackwell (1877)
9. Administration de bonis non – appointed where there is a break in chain of administration – see ss.6,26,27, & 28 of AEL Abia&ss 6, 28-30 of AEL Lagos
10. Administration pendentelite – see s27 AEL Lagos; s 25 AEL Abia; LADEJOBI V ODUTOLA HOLDINGS LTD& ORS (2002)appointed because there was a prolonged dispute, so pending the case.
11. Administration pending the grant of letters of administration – see s10 AEL Lagos, s 10(1); s. 10 AEL (Edo, Delta states) This is usually given to the administrator-general pending when the main letter of administration is granted. This is used where its being delayed but there’s a need to administer the estate pending the grant. So undue delay.

 

7. Administration by administration general – note when necessary

When may the administrator administer the estate/ when is it necessary

1. When he is expressly appointed by the deceased person under his will. See s 2 AEL
2. Where after the death of the deceased person the estate is left unrepresented

• Where the people who are meant to act / are entitled to act as the personal representative are not available and they have no representatives in Nigeria.

1. Where the estate is open to the danger of misappropriation through maladministration, the administrator general may step in
2. Where the agents 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
3. Grant durante absentia – where the person entitled is absent from Nigeria after 12 months of death of deceased – in the goods of rose (1934)
4. Administration by attorney
5. Grant ad collingenda bona  - where there are perishable items
6. Grant durante dementia – person entitled is incapacitated
7. Grant duranteminoreaetate – granted where the person entitled is a minor, to another person t, to mange the estate pending then the minor attains majority. Agidigbiv Agidigbi (1992)

These are all types of letters of administration that may be made.

Note that these grants are classified into two: major/usual grants and special grants. The usual grants are: probate, simple administration/ administration without will, administration with will annexed. These are the major grants that could be made in respect of a man’s estate. All others are special grants  

 

 

INCOMPLETE ADMINISTRATION

Refers to grant of administration in the middle of another grant. May arise in the following instances:

• Grante de bonisnon administrate – made where all the administrators die or there is a break in the chain of administration before completion of administration.

Note: In probate -The executor of the last surviving executor’s will take over the administration of the first testators estate, this rule applies only where the last surviving executor made a will. If he did not make a will the estate would be said to be unrepresented and so this grante de bonis would apply.

 

• Cessate grant – made where a limited grant as to time is made which has expired before the completion of admin. Any application for extension for time for a grant as to time is called cessate grant, so its like a further grant

 

Procedure for grant of letters of administration

Same as probate

 

Note that guarantor or trustees may not be required where the grant

 

Who is entitled to letters of administration?

The following are entitles in order of priority (see s.49 AEL Lagos; 48 AEL Abia) :

1. Surviving spouses of the deceased;
2. Children of the deceased or issues of such children that predeceased;

• Parents of the deceased

1. Brothers and sisters of full blood and their surviving children – TAPA V KUKA (1945)
2. Brothers and sisters of half blood and their surviving children that are sui juris
3. Grand parents of the deceased

• Uncles and aunties of whole blood or their surviving child

Must read s49 AEL

 

Note: the distinction between marriage under the act & customary marriage with respect to pre-eminence if spouses to grant of admin – see the following

1. Smith v Smith (1924)
2. Coker v Coker (1943)

• Obusez v Obusez (2001)

1. Williams v Ogundipe (2006)
2. See Aruwaju v Asaboro

Those that are married under the act are automatically entitled

 

DOUBLE PROBATE is where probate is subsequently given to a person or persons to join the executors who had already been granted probate. It is a grant of probate after an initial grant of probate has been made to some other person or persons.So where a person who is entitled to probate but couldn’t join in the initial grant of probate later applies for probate, he would be granted a double probate. Any application for probate by an executor after some other people have been given probate is called double probate.

Where all the executors die together, the youngest is deemed to have died last. If they cannot determine who youngest is, the last person who is named is deemed to have died last.

The first 4 are in accordance with the order in which they were listed.

Double probate may arise in the following instances:

1. Inability to join the initial application
2. Minor appointed executor, on attaining majority

• Executor mentally incapacitated at the time of initial grant

1. More than four executors. On the death of one or some, those not joined initially may apply for double probate

 

 

 

Number of executors /administrators – s 24 AEL

The position of the law is that letters of administration cannot be given to fewer than two persons. Except if it’s a corporate body or public trustee that is being appointed. So minimum of two natural persons, 1 corporate body. Grant of letters can only be made to not less than two persons but not more than 4 persons.

When its executors maximum is 4 but there is no minimum, so probate can be granted to one person. See s8, s9 and 24 AEL

 

ADDITIONAL NOTES FROM TASK

 

• Administration pendentelite is the special grant given pending the resolution of a dispute and this is the same even where the man dies intestate because once there is a dispute in an estate and there is an emergency, the probate registrar would appoint someone to administer the estate pending when the dispute is resolved.

 

Instances in which a grant already made could be revoked

1. If the man is found to be alive
2. If the grant was obtained my means of fraud or misrepresentation

• If it’s a grant limited as to time and the time has gone

1. If the grant was found to be made in error
2. Where it’s a grant of letters of administration and its discovered that the man made a will, the administrators powers will be revoked in favor of the executors power
3. Can be revoked on grounds of maladministration i.e. they’re not using it for the purpose for which the grant was made

• On grounds of devastavate i.e. wilful wasting of the properties in the estate
• If the grant is made pending the resolution of a dispute or someone who had not come of age but the person has now come of age etc.

 

 

Taxes that will be paid in respect of probate practice

• Estate duty tax – the tax paid for processing grant of probate or administration. Its usually a percentage of the total value of the estate of the deceased. In Lagos state its usually 10%. They estimate the value by looking at the bank certificate. Bank certificate is the document used to get the amount of money standing to the credit of the deceased person in the various financial institutions
• Personal income tax
• Value added tax

 

Steps that will be taken in obtaining probate grants in non – contentious probate

• Search and discovery of the will
• Reading of the will
• Application of probate
• Proof of the will
• Processing of the application by the probate registrar
• Grant of probate by the probate registrar