INTRODUCTION

Death is an extremely sensitive topic, mainly because people are afraid of death, and death is inevitable. When a person dies, he leaves his properties behind which is collated as an estate. Legally, a person can either die testate or intestate. During one’s lifetime, a person can state how his or her estate would be administered upon death. When a person dies testate, the deceased had a valid Will (which is said to be ‘ambulatory’) stipulating the mode of distribution of the estate and the beneficiaries of such estate. Such deceased person is called a testator. The Will echoes the wishes and intents of the testator. On the other hand, when a person dies intestate, he died without a Will. In such circumstances, it is the Succession Law of the State of residence upon death that guides the administration of the estate of the deceased.

The basis for probate and administration of estates is to ensure that the estate of a deceased person is properly distributed and handed over to the appropriate beneficiaries. The Probate Registry of each State is saddled with this responsibility. However, only those subject to the laws of the state would enjoy its provisions.

JulieCash Oduma, Esq., Associate (Transactional & Litigation)

It is pertinent to state that testate succession is solely governed by the Laws of the State. However, intestate succession can either be governed by the Laws of the State or the Customary Law of the deceased. Where a person contracted statutory marriage under the Act, upon either of the spouses’ death, administration of his or her estate will be governed by the Laws of the State of residence upon death. Where the deceased contracted a marriage under the native Law and Custom, the administration of his estate shall be in accordance to the Customary Law and Custom[1].

Applications for grant of probate and Letters of Administration is made to the Probate Registry[2]. In Oyo State, both the Probate Registry of the High Court of Oyo State and the Probate Registry of the Customary Court of Appeal of Oyo State are saddled with the responsibility of seeing to the Administration of the Estate of deceased persons resident in Oyo State.

There are mainly three types of instrument of authority granted by the Probate Registry to administer the estate of a deceased person. They are:

  1. Grant of Probate
  2. Grant of Simple Administration
  3. Grant of Administration with will annexed

GRANT OF PROBATE

A grant of probate is the lawful authority granted to the executors of a deceased persons’ estate, to oversee the estate as stated in the Will. The authority of an executor to act is derived from a Will and such authority is legally backed by a grant of probate. In other words, a grant of probate confirms the powers and functions of an executor to act in such capacity. An executor acting without a grant of probate acts as a trespasser, such person is called an executor de son tort. An executor de son tort is any person who wrongfully deals or interferes with the estate of a deceased person. Hence, where a validly elected executor acts without a grant of probate, such executor’s act is wrong as the necessary authority has not been first had and obtained.

The person authorised to apply for a grant of probate is the executor(s). Where no executor is validly appointed by the Will or where validly appointed executors die or renounce executorship, the applicable instrument of authority is not a grant of probate but rather, a grant of Letters of Administration with the Will annexed. In Oyo State, there is a laid down rule stating those entitled to the grant of probate and Letters of Administration with the Will annexed. They are:

  1. “The executor
  2. Any residuary legatee or devisee holding trust for any other person
  3. Any residuary legatee or devisee for life
  4. The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency or where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person.”[3]

Where there are two or more executors appointed in a Will, and only one of the executors applied for the grant of probate, such application may not be granted until due notice of such application has been given to the other executors and such executors have been given an opportunity to be heard with respect to the application for the grant of probate.[4] This provision of the rules is to prevent several applications for grant of probate with respect to the same estate and to also prevent future querying of the grant of probate by other executors.

STEPS OR PROCEDURE FOR THE GRANT OF PROBATE IN OYO STATE

            The procedure to adopt in the grant of probate is dependent on whether such application is contested or not contested. In the absence of any question, the procedure for non-contentious grant of probate also known as probate in Common Form will be adopted. In circumstances where the validity of the Will is being contested, or the appointment of the executors is being challenged, or probate is sought to be revoked or denied, the procedure to be adopted would be for a contentious grant also known as probate in the Solemn Form.

PROCEDURE FOR NON-CONTENTIOUS GRANT OF PROBATE (COMMON FORM)

  1. Search, discovery and reading of the will

A Will can be kept in various places; it could be with the testator’s lawyer, lodged in the High Court or whatever place the testator deems safe. Upon the death of the testator, the first step in dealing with the estate of the testator is to search and discover the Will.  The High Court (Civil Procedure) Rules of Oyo State, 2010 provides that where the Will is in the custody of any person, such person is to send the will to the Probate Registry within three (3) months of the knowledge of the testator’s death[5]. Where there is a person aware of any testamentary document of a deceased person, the court may summon such person to be interrogated with respect to the location of the document.

Upon such discovery, the family members or the Solicitors will apply to the Probate Registry for the reading of the Will. The application will be accompanied by a valid death certificate of the testator. The Probate Registrar would then cause the Will to be read at a time and place within the Probate Registry. The Will shall then be opened publicly and read by the delegated officers in charge.

  1. Application for Probate

After the Will has been read, the executors will apply for the grant of probate which is by way of a Petition in Oyo State.[6] In Oyo State, the applicant may apply in person or through a Legal Practitioner. Other testamentary documents referred to in the will must be duly attached to the Petition. The following must be contained in the Petition:

  1. The Particulars of the testator.
  2. The Particulars of the death of the testator.
  3. The testator’s place of residence within the jurisdiction shortly before his death.
  4. That the testator had a valid Will.
  5. That the applicants are executors named in the Will.

      The applicant would also attach the following:

      1. Testator’s death certificate
      2. Testator’s proof of identification
      3. A copy of the Will
      4. Executor’s mode of identification
      5. An affidavit stating the particulars of the testator’s death
      6. A declaration of all the properties of the testator.
          1. Proving of the Will

          The executors are usually called upon to prove a Will. This is usually by proving the due execution of the Will and proper attestation. The executor after applying for probate, proves the Will. Where an executor refuses or neglects to prove a Will, a notice which is called Citation shall be served on the executor, directing such executor(s) to either prove the Will or renounce probate.

          1. Grant/Refusal of Probate

          When the Probate Registrar is satisfied that a Will was duly executed and is a true reflection of the testator’s wishes, the Probate Registrar would grant probate. The grant will then be sealed and delivered to the applicant. However, the application for grant of probate can be refused in the following circumstances:

          1. Where the applicants are not executors or within the list of people entitled to apply for grant of probate
          2. Where the applicant is an infant
          3. Where the applicant lacks mental capacity
          4. Where the applicant is not within jurisdiction
          5. Where the testator is found to be alive
          6. Where the application is contrary to public policy
          7. Where there is a pending suit in respect of the grant.

                PROCEDURE FOR CONTENTIOUS GRANT OF PROBATE

                The following factors distinguish the procedure for a Contentious Grant from a Non-Contentious Grant of Probate:

                1. Caveat

                Caveat is a form filled by a person challenging the grant of probate. A caveat is a notice in writing, stating that no grant of probate shall be sealed in respect to the estate of the deceased person without notice to the caveator. The Registrar shall not seal any grant of probate in the existence of a caveat.

                After the service of a caveat, a warning or notice to appear is issued against the caveator by the applicant of the grant of Probate. The appearance would disclose the name, address, and interest of the caveator in the estate of the deceased person as well as reasons the executor(s) should not be granted probate. Where their interest conflicts, the action would be determined in the Court of Law. In Oyo State, the High Court and the Customary Court of Appeal is vested with the jurisdiction to determine cases relating to probate administration.

                1. Citation

                An applicant for a grant of probate may cite the caveator by serving an appropriate warning on the caveator, warning the caveator to declare any contrary interest he has in the estate of the deceased person. A citation is often accompanied by an affidavit verifying the facts stated in the citation.

                1. Probate Action

                Where the caveator enters appearance and shows a contrary interest in the estate of the deceased person, probate will not be granted but an action shall commence in Court with respect to the matter.

                1. Grant or Refusal of Probate

                The grant or refusal of probate is dependent on the outcome of the probate action. Where the court finds in favor of the Will or the executors, the Probate Registrar will grant probate. Where there is a pending appeal with respect to the application for grant of probate, the Registrar would grant a temporary administration pending litigation to preserve the estate of the deceased.

                 GRANT OF LETTERS OF ADMINISTRATION

                Where a person dies intestate, the administration of the estate is governed by the Laws of Succession in his/her State of residence before his death. In Oyo State, the Administration of Estate Laws of Oyo State, 2000 is applicable. The Letters of Administration gives authority to the administrators to deal with the estate of the deceased person. It is the legal authority granted by the Probate Registry to a person to administer the estate of a deceased person who died intestate or partially intestate with the Will annexed.  Where a person not granted Letters of Administration deals or interferes with the estate of the deceased person, such person shall be liable as provided by the law.[7]

                It is pertinent to state that Letters of Administration will be granted to a minimum of two (2) persons and maximum of four (4) persons.[8] Letters of Administration is granted with respect to both real and personal property. The properties being administered by the administrator are limited to those contained in the Inventory of Assets.

                It should be noted that the Letters of Administration cannot be transferred, neither can they be inherited. Letters of Administration does not confer ownership or title in the property of the deceased to the administrator. Rather, it confers authority to administer the estate for the benefit of the beneficiaries.[9]

                PROCEDURE FOR GRANT OF LETTERS OF ADMINISTRATION

                Application in this regard is also to the Probate Registry. The Law stipulates the list of people entitled to apply for letters of administration in their order of priority. They are:

                1. Spouses
                2. Children of the deceased
                3. Parents of the deceased
                4. Brothers and Sisters of the deceased, full blood
                5. Brothers and sisters of the deceased, half blood
                6. Uncles and Aunties
                7. Grandparents
                8. Administrator General of the State[10]

                The application can be processed personally or with the assistance of a Legal Practitioner. The Application is by way of forms gotten from the Probate Registry and other necessary documents would be attached. The various forms and documents include the following:

                1. Applications for Letters of Administration (without Wills)
                2. Oath for Administration (Without will)
                3. Administration Bond (Without Will)
                4. Bank Certificate
                5. Declaration as to next-of-kin form
                6. Inventory of Assets form
                7. Bank Certificate (Where applicable)
                8. Justification of Sureties
                9. Sureties Guaranty form
                10. Particulars of freehold/leasehold properties of the deceased
                11. Schedule of debts and funeral expenses
                12. Death Certificate of the Deceased
                13. Administrators’ valid means of identification

                After the forms have been correctly filled by the applicants, and the proper documents have been attached, the Probate Registry will then issue a pay sheet based on the value of the deceased’s assets. Notice of the application will be published in a National newspaper informing the public of the application for the administration of the estate of the deceased and calling for oppositions.

                After twenty-one (21) days of the publication, in the absence of oppositions, minutes and order of the file will be generated and passed to the Probate Judge for approval. Upon approval, the Letters of Administration would be prepared, and such would be signed by the Probate Registrar.

                Where the proper procedure for grant of probate and letters of administration is not followed or where there are cases of fraud or applications made by wrong persons, the aggrieved person can institute an action in the High Court of Oyo State or the Customary Court of Appeal, Oyo State for redress.

                CONCLUSION

                The procedure for the grant of probate and Letters of Administration is similar in most jurisdictions; only a few details distinguish one from the other. It is pertinent to state that Lagos State has established what is known as Electronic Probate which has simplified the process as every step can be achieved from the comfort of the home and/or office.

                There are several challenges in the process of Grant of Probate and Letters of Administration, and they include money spent, time involved in the processing, the cumbersome procedure and the issue of family disputes which elongate the whole procedure. The dual Probate Registry has facilitated expeditious application and processing in Oyo State.  As seamless as these procedures may seem, they require precision and professionalism. The procedure is quite cumbersome, and it is best done by a professional.

                JulieCash Oduma can be reached via the mail at: juliecash.oduma@harlemsolicitors.com

                FOOTNOTES:

                [1] Obusez V. Obusez (2001) FWLR (PT. 73) 25 at 40 Aderemi JCA

                [2] Order 55 Rule 1(1) of the Oyo State High Court Civil Procedure Rules, 2010.

                [3] Order 55 Rules 25 of the Oyo State High Court Civil Procedure Rules, 2010.

                [4] Order 55 Rule 10 of the Oyo State High Court Civil Procedure Rules, 2010.

                [5] Order 55 Rule 4 of the Oyo State High Court Civil Procedure Rules, 2010.

                [6] Order 55 Rule 1(1) of the Oyo State High Court Civil Procedure Rules, 2010.

                [7] Order 55 Rule 3, Oyo State High Court Civil Procedure Rules, 2010

                [8] Section 22, Administration of Estates Law of Oyo State, 2000

                [9] Duke V Admin-General Cross Rivers State (2010) 15 NWLR (PT. 1217) P 442

                [10] Administration of Estate Act, LFN 2004

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