Legal Capacity and Priority in the Grant of Letters of Administration in Intestate Estates in Nigeria

Introduction

Mr. A acquires properties in his name. An untimely death cuts short his life, and he dies without writing a will in his lifetime. His family and dependents now seek administration over the estate left behind. This hypothetical situation is one of the obvious case scenarios in the legal fight over the administration of estates by personal representatives. A personal representative is someone who is appointed by a will or the court to administer a deceased’s estate. This appointee may be the executor if he/she is named so in the will or the successor to the administrator appointed by the court in the instance where the deceased died without a will or naming an executor.[1] Sherring & Sladen (1996) identifies that the duties of personal representatives are to find, secure and collect the deceased’s assets (including claims against third parties), to pay outstanding debts (including the funeral expenses) and the proper and reasonable expense of administration (including taxation), to transfer specific gifts to the legates, to pay pecuniary legacies and to account to the residuary legatees for what is left.[2]

This paper focuses on the hierarchy of personal representatives in the grant of administration of intestate estates and the legal capacities to be considered in granting administration.

Letters of Administration

A Letter of Administration (LoA) is a legal document issued by the Probate Registry to allow an individual, who is in most cases a family member (or next-of-kin), to manage, dispose or administer the estate of a deceased person who died without writing a valid will.[3] There is the grant of letters of administration with the will annexed and without the will annexed. Where the will is annexed means the grant is only possible where the deceased partially died testate. Where it is not annexed, the letters are issued because the deceased died without leaving a will. It is consistent with the laws of succession in Nigeria that where a deceased dies intestate, the real and personal estate is deemed to be vested in the Chief Judge of the State.[4]

In determining administrators, the rights and interests of parties and applicable legal principles are among the things taken into consideration by the court. The Probate Registry or the Court has the ultimate discretion to decide as to who has a sufficient interest in the estate to have participation in the estate.[5] In Nigeria, every State has an Administration of Estates Law, which is enacted to govern Letters of Administration and administer the estates of deceased persons.[6]Also, the Civil Procedure Rules of the High Court of each State make provisions for the procedure for obtaining Letters of Administration.[7] 

A major legislation used in this paper in the administration of estates is the Administration of Estates Law of Lagos State.[8] This is because similar provisions are found in the laws of other states.

Hierarchy of Persons Entitled to a Grant of Letters of Administration

The order of priority for application for Letters of Administration is followed with significance to the number of persons who are alive and willing to apply for the letters. Section 49(1) of the Administration of Estates Law of Lagos State lists the categories of persons who can apply, and in the exact order:  

1. Surviving spouse(s) of the deceased;
2. Children of the deceased or the issues of such children that dies before the deceased;
3. Parents of the deceased;
4. Brothers or sisters of the deceased of full blood or the children of such brother or sister who died in the lifetime of the deceased;
5. Brother or sister of the deceased of half-blood or the children of such brother or sister who died in the lifetime of the deceased;
6. Grandparents of the deceased;
7. Uncles and aunts of full-blood or their children;
8. Uncles and aunts of half-blood;
9. Creditors of the deceased;
10. Administrator General.

The court has a discretion to select any person in its view in the instance where there are people of equal priority.

Any of the above persons who qualify to apply and desire to obtain the letter of administration must follow a certain procedure, which includes:

1. Application by the next-of-kin, supported with a death certificate and affidavit.
2. Requirement for sureties who guarantee that the administrators will properly manage the estate.
3. Publication of notices in newspapers inviting objections.
4. Valuation of the estate and assessment of fees.
5. Payment of fees and estate duties.
6. Issuance of Letters of Administration to the approved applicants.

Legal Capacity in Grant of Letters of Administration

It is important to note that priority and hierarchy do not override capacity and legal competence in the administration of estates. Capacity is mandatory in nature and not presumed. In Yinusa A. Shittu & Anor v Mrs. Bisi Osibanjo & Ors.[9], the Court emphasized that any person applying for Letters of Administration must not only have a recognizable interest but also the legal competence to manage it.

On whether a minor can be granted letters of administration even when he is the next qualified in order of hierarchy, it is trite in law that probate cannot be granted to a minor.[10] Also, a grant cannot be made to a person who is mentally or physically incapable of managing his own affairs. But a grant may be made for the use and benefit of the minor or incapable person to the parent or guardian of the minor or to a person authorised by the Court of Protection in the case of an incapable person.[11] Where there is a breach of administration of the estate of the deceased against the interest of the minor beneficiary, the minor can sue the administrator for an account.[12] In Arije v. Arije[13], two junior brothers of one Alhaji Garuba Arije who died intestate applied for a grant of letters of administration in respect of the estate of the deceased. The letters of administration were granted to them as assigned guardians to the 10 minors of the deceased, for the purpose of administering the estate of the deceased for the benefit of those minors listed in the letters of administration until one of them attains the age of 21 years. The height of the appellants’ case in the lower court was that the administrators did not train the children of the deceased and that they did not render accounts of their stewardship. Upon commencing an action, the appellants lost at the court of first instance. However, on appeal, and in their favour, the Court of Appeal ordered for the rendering of accounts in terms of the relief sought by the appellants.

Other factors that could affect legal capacity in the administration of estates are financial incapacity, bankruptcy, fraud and moral unfitness. The court will not be disposed to grant administration to a person who has an ill track record.

Conclusion

The balance is clear. There is a difference between entitlement by relationship or position and qualification by capacity. While the courts and laws of various states establish an order of priority, the courts have also consistently established that priority is not automatic or absolute.

As such, the emphasis on capacity over priority reveals the broader objective of probate and succession law which is the orderly and efficient administration of estates for the good of all entitled persons. To further advance this cause, there is need for clearer probate rules across states and more public awareness of succession planning so that while the dead is dead, the living will keep living. In other words, disputes will be reduced and conflicts, confrontations and threats will be replaced with peace, unity and harmony.

FOOTNOTES

[1] Adebayo, T. (2024, May 29). Issuance of letters of administration in Nigeria–A practical approach. Tope Adebayo LP. https://www.mondaq.com/nigeria/wills-intestacy-estate-planning/1471916/issuance-of-letters-of-administration-in-nigeria-a-practical-approach(Retrieved on 27 January 2026)

[2] Sherring & Sladen, (1996) Ranking, Spicer and Pegler’s Executorship Law, Trusts and Accounts (Twenty-fourth edition), London, Reed Elsevier (UK) Ltd., p. 105, para. 5.49.

[3] Aekley Solicitors, Nigeria. (n.d.). A Guide on How to Obtain Letter of Administration in Nigeria. Probate and Family Law Practice Department. https://aekleysolicitors.com/a-guide-on-how-to-obtain-letter-of-administration-in-nigeria/#:~:text=A%20GUIDE%20ON%20HOW%20TO%20OBTAIN%20LETTER%20OF%20ADMINISTRATION%20IN%20NIGERIA,-A%20Guide%20on&text=A%20Letter%20of%20Administration%20is,died%20without%20a%20valid%20will (Retrieved on 27 January 2026)

[4] Section 10 of the Administration of Estates Law (Lagos State).

[5] Williams v. Ogundipe (2006) ALL FWLR pt 327 at page 540.

[6] Aarndale Solicitors. (2024, April 30). Obtaining letters of administration in Nigeria – A review of the Lagos State procedure. AarndaleLaw. https://aarndalelaw.com/obtaining-letters-of-administration-in-nigeria-a-review-of-the-lagos-state-procedure/ (Retrieved on 28 January 2026).

[7] Ibid.

[8] Chapter A3, Law of Lagos State 2015.

[9]  (1988) LLJR-SC.

[10] Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221).

[11] A. Iwobi. (1996). Essential Succession. Great Britain, Cavendish Publishing Limited, pp. 66-67.

[12] Ezeonu, A. (2017) The Place of the Minor in the Administration of Estates. Law Journal of Nigeria, 1 L.J.N.: 22- 50.

[13] (2011) 13 NWLR (Pt.1264).