Introduction

Probate is the legal authority granted to an executor or executrix of a Will to administer the authentic Will of the testator. Ordinarily, probates or letters of administration are granted in respect of properties within a state jurisdiction. The probate granted by a probate court confers on the executor or executrix the power to administer or deal with only the assets or estates within the jurisdiction of the probate court. It does not cover other asset mentioned in the Will that are outside the territorial Jurisdiction of the court. Therefore, in order to make a probate granted outside Nigeria to be effective and enforceable, it has to be resealed in Nigeria in the State where the property in Nigeria is located. Likewise, in order to make a probate granted in one State in Nigeria to be effective in another State in Nigeria, it must be re-sealed in the probate registry of that other State. In reality however, the testator might have had properties in other places outside the jurisdiction which issued the probate or letters or in many jurisdictions, the executors or administrators are not obliged or required to apply for probate in each of the jurisdictions where the testator's properties are located. Once probate is granted, what the executors need to do is to reseal the grants in those other jurisdictions.

What is Resealing of Grant of Probate?

Resealing of grant or letters of administration is an acknowledgement that a probate granted by the High Court of a particular State is valid in another State where the deceased had properties. Thus, if the executors intend to deal with other properties the deceased had outside that State, they have to apply for the resealing of the probate in the High Court of the State where the property is situated as provided for in the Probate Resealing Act. Resealing of probate is regulated by the High Court (Civil Procedure) Rules,1 and an application is to be made to the Probate Registrar where the property is located accompanied by Certified True Copies of the first grant of probate, copy of the Will, sworn statement by the applicants and evidence of payment of prescribed fees. After resealing, the registrar shall send the notice of the resealing to the court where the original grant was made, and the registrar of that court is under an obligation to send notice of any amendment or revocation of the grant to the registrar re-sealing the grant.

Procedure for Resealing of Letters of Administration

The procedure for resealing is statutorily provided for in the probate (Resealing) Act2 which provides thus:

"Where the High Court of a state has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters of Administration so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of any other state, be re-sealed with the seal of that court"3

Who Can Apply for Resealing Grants of Probate?

  1. A person entrusted with the administration by the court of the place of domicile.
  2. A person beneficially entitled to the estate by the law of the place of domicile.
  3. The executor named in the Will.

Effect Of Re-Sealing

The effect of the resealing of a probate grant or letters of administration has the force and effect and the same operation in the state where it was resealed as if it was granted by the High Court of that State.4 In essence, where probate has been successfully re-sealed, it has the same effect as if a fresh grant of probate or letter of administration has been granted in respect of the estate, and the administrators or executors are entitled to exercise authorities on any properties in the jurisdiction.

Conditions for Resealing

The High Court of a State shall, before resealing a probate or letters of administration under this Act, be satisfied that:

  1. That probate duty has been paid in respect of so much, if any, of the estate as is liable to probate duty in that State
  2. In the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in that State to which the letters of administration relate, and may require such evidence, if any, as it thinks fit as to the domicile of the deceased person.5

It is worthy to note that, an application for probate can only be made after seven (7) days in Abuja and fourteen 14 days in Lagos from the date the testator died, however, the application must be made within three (3) months (Lagos) or six (6) months (Abuja) from the death of the deceased as failure to apply for probate within these prescribed periods will result to the executors losing their right to apply except there are special circumstances6

Therefore, in order to make a probate granted outside Nigeria to be effective or enforceable in Nigeria it has to be re-sealed in Nigeria in the State where the property is located. Likewise, in order to make a probate granted in one state in Nigeria to be effective in another state in Nigeria, it must be re-sealed in the probate registry of that other state.

An application for the resealing of Probate or Administration with Will attached granted by a court outside Lagos state shall be made by the person to whom the grant was made or by any person authorized in writing to apply on grantee's behalf. On any such application:

  1. A Tax Clearance Certificate shall be lodged as if the application were one for a grant in the State.
  2. The application shall be advertised in such manner as the Judge may direct and shall be supported by an oath sworn by the person making the application.
  3. Sureties will be required, where there are special circumstances making it desirable to require sureties.
  4. No limited or temporary grant shall be resealed except by leave of the Judge.
  5. Every grant lodged for resealing shall include a copy of any Will to which the grant relates or shall be accompanied by a copy certified as correct by or under the authority of the Court by which the grant was made.
  6. The Registrar shall send notice of the resealing to the Court which made the grant.
  7. Where notice is received in the Registry from outside the State of the resealing of a grant made in the State, notice of any amendment or revocation of the grant shall be sent to the Court by which it was resealed.

Multiple Grantees and Applicants for Resealing

Where the original grant is made to two or more persons, all the grantees must join in the application for re-sealing. The re-sealing would not be made where there is no agreement among the personal representatives unless the court makes an order excluding any of the personal representatives. In Eyibo v Mujaddadi & ors,7 the issue for determination was whether joint Administrators of the Estates have the capacity to act and enter into a contract without the concurrence of all the representatives. The court held that "where more than one executor or administrator is appointed, the joint office is treated as that of an individual. Administrators of the estate must act jointly and not separately including applying for re-sealing of the original grant of probates. They must act in one accord as one or others cannot act without any other or others, each executor represents the estate for all purposes, subject only to the statutory exceptions.

Re-sealing of Probates and Letters of Administration Granted in Commonwealth Countries

Where a court having jurisdiction in matters of probate in a Commonwealth country has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of a State, be re-sealed with the seal of that Court.8 In Nigeria, Probates(Re-sealing) Act, Cap 161 enables probate granted in any part of the commonwealth to be resealed in the High Court of states. This was also upheld in the case of Ogbuehi v. Nnaji & Ors.9

Conclusion

Where a Will has been read and probate obtained in a foreign country, the grant shall be re-sealed10 to make effective within Nigeria. The re-sealing is made with respect to the properties found within Nigeria. Personal representatives only have powers over properties in state where grant was given and they lack locus standi to institute action in respect of property outside the State unless grant is resealed. Probates or letters of administration are granted in respect of properties within the jurisdiction of the State and when executors and administrators want to deal with those other properties, the grant of probate or letters of administration must be resealed in the High Court of the State where the property is situated. In Nigeria, High Court of states are empowered to re-seal grant of probate of Commonwealth countries which has jurisdiction to entertain probate matters when produced to, and a copy thereof deposited. Therefore, in order to make a probate granted outside Nigeria to be effective and enforceable, it has to be resealed in Nigeria in the State where the property in Nigeria is located. Likewise, in order to make a probate granted in one State in Nigeria to be effective in another State in Nigeria, it must be re-sealed in the probate registry of that other State.11

Footnotes

* Idorenyin Ekpenyong, Associate Intern, Real Estate and Succession SPA Ajibade & Co., Lagos, Nigeria.

1. Order 62 Rule 25 of Lagos State Civil Procedure Rule 2019.

2. Section 2 of Probate (Re-sealing) Act Cap p31 Laws of the Federation of Nigeria 2004.

3. Nyianaka v. Anyika (2021) LPELR-52817 CA.

4. Section 6 of Probate (Re-sealing) Act Cap p31 Laws of the Federation on Nigeria 2004

5. Section 3 of Probate (Re-sealing) Act Cap p31 Laws of the Federation of Nigeria 2004.

6. Order 62 Rule 25 Lagos State High Court and (Civil Procedure Rule).2019; Order 64 Rule 45 FCT High Court (Civil Procedure) Rule, 2018.

7. (2021) LPELR-57110(SC)

8. Section 2 of Probate (Re-sealing Act) Cap p31 Laws of the Federation on Nigeria 2004.

9. (2015) LPEL-25992(CA)

10. Ibid.

11. Nyianaka v. Anyika (2021) LPELR-52817 CA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.