An Appraisal Of Administration Of Estate And Probate In Nigeria

INTRODUCTION

Everyone desires to exit this world peacefully. It is also everyone's desire that there should be peace after their death especially as regards devolution of their estate among their beneficiaries and that all their dependents remain settled and sufficiently catered for after they are long gone from the earth.

Death is inevitable and the inevitable happens unplanned sometimes. So, what happens to a person who died intestate? How is such estate distributed among the deceased's desired beneficiaries? Is there a law guiding the distribution of the estate of a deceased who died intestate? For a person who died testate, what are the process to ensuring that his or her desire stated in the will are fulfilled? What will happen to the estate of a testator who was domiciled outside Nigeria?

These are the questions this paper will answer.

The Grant of Probate is obtained concerning the estate of testate succession, while Letters of Administration is obtained concerning both intestate succession and testate succession. While it is possible to obtain Letters of Administration for testate succession, it is impossible to obtain Grant of Probate for intestate succession.¹

1.1. ADMINISTRATION OF ESTATE IN NIGERIA

An administrator is the person to whom a grant is given by the court to administer the estate of a deceased person. It follows that the grant by the court of Letters of Administration is the authority by which anyone claiming to be an administrator would derive his authority.² A person to whom Letters of Administration had not been granted has no capacity to institute an action as administrator of an estate.³

Administration of Estate laws of various states is made in order to make the administration or devolution of the estate of a deceased person who was married under the Act during his or her lifetime but died intestate possible and smooth.

Administration of estate laws of the various states of the Federation of Nigeria is one of the statutory laws which regulate the estates of deceased persons, while the procedure for the grant of the right to administer the estate of deceased persons is governed by the High Court (Civil Procedure) Rules of each State and the FCT of the Federation.⁴

The Administration of Estate Laws in Nigeria provides for a legal system of administration of the estate of deceased persons which intends the verification of the claims of persons claiming to be entitled to the estate of deceased persons and subsequently grant the authority or power to administer the estate to the persons who have passed through the verification processes at the probate registry.⁵ Therefore, upon the death of any person whether testate (i.e. with a Will) or intestate (without a Will) his or her estate will be administered in accordance with the Administration of Estates law applicable in his or her State of domicile in Nigeria. It is important to observe that the administration of estates laws of several states in Nigeria made provision excluding its application to the distribution and administration of estate of a deceased person whose affairs were regulated by Islamic law or customary during his or her lifetime.⁶

The implication of this is that Customary, Area, and Sharia courts in the relevant States vested with jurisdiction to handle questions of Islamic personal law or customary law of inheritance of a deceased person and any distribution of estate of a person bound at the time of his or her death by Customary or Islamic personal law are not to be governed by the administration of estate laws in such states.⁷

1.2. PERSONS ENTITLED TO GRANT OF LETTERS OF ADMINISTRATION

The estates of the deceased person who died intestate will be vested in the Chief Judge of the state where the deceased was domiciled during his or her lifetime. For anyone to have control over the estate of the deceased, he or she must be made the administrator of the estate of the deceased and in order to be made an Administrator, a Letter of Administration must be obtained from the Probate Registry at the High Court of the state where the deceased was domiciled during his or her lifetime.⁸ Letters of Administration confer authority to deal with the Estate property on behalf of the beneficiaries.⁹

A letter of Administration may be granted after 14 days of death of the deceased person and there is an order of priority of persons who can apply as of right for a grant of Letters of Administration. The priority is as follows:

1. Surviving spouse of the deceased.
2. Children or grandchildren (if the parents died during the lifetime of the deceased) of the deceased.
3. Parents of the deceased.
4. Siblings of the deceased.
5. Half siblings of the deceased.
6. Grandparents of the deceased.
7. Uncles and Aunts of the deceased.
8. Creditors of the deceased.
9. Administrator General (where all the above had failed).¹⁰

1.3. REQUIRED PROCESSES AND DOCUMENTS FOR GRANT OF LETTERS OF ADMINISTRATION

The following documents are required to initiate the process for the grant of letters of Administration in Probate Registry.

1. Application Letter addressed to the Probate Registrar containing the full of names and address of the deceased, date of death of the deceased, place of residence of the deceased during his or her lifetime and the full names and addresses of the proposed Administrators.
2. The Application Letter must be accompanied by other important documents such as the death certificate of the deceased, passport photograph of the deceased, passport photograph of all the proposed Administrators, ID cards of all the proposed Administrators and the phone numbers of the Administrators, beneficiaries, and close relation of the deceased.
3. The following forms will be paid for, filled, filed, and submitted at the Probate Registry:
   
   • Application for a grant of Letters of Administration (Without Will)
   • Oath for Administration (Without Will)
   • Administration Bond (Without Will)
   • Inventory
   • Particulars of Freehold or Leasehold Property left by the Deceased.
   • Declarations as to Next-of-kin of the Deceased
   • Schedule of Debts due by the deceased.
4. A Bank Certificate will be issued after payment of the form fees.
5. Get all the assets of the deceased (both movable and immovable) and the balance standing to the credit of the deceased stamped on the Bank Certificate and resubmit to the Probate Registry for assessment.
6. Make payment of all requisite Estate fees assessed.
7. An interview will be scheduled at the Probate Registry to confirm that the information provided to the Probate is true.
8. Publication will be made in the Newspaper or the Gazette to allow the public or any interested person the opportunity to object and file a caveat to the grant of Letters of Administration to the applicants. Anyone who has any objection has 21 days to make such objections at the Probate Registry.
9. The application will move to the Probate Judge's office for necessary action if no objection is received within 21 days.
10. If every information in the application is confirmed and there are no complications attached during assessment at the Probate Judge's office, then the Letters of Administration will be granted and issued accordingly.¹¹

A person can only act as an administrator of an Estate pursuant to letters of Administration granted by the Probate Registrar. Thus, where the administrator is restrained from further acting as such by the court, the reason for which the letters of Administration are granted is undermined and tantamount to revocation of the letters of Administration.¹²

2.1. PROBATE PRACTICE IN NIGERIA

Probate is the judicial procedure by which a testamentary document is established to be valid Will. In other words, it is the proving of a Will to the satisfaction of the court. Therefore, unless it is set aside, the probate of a Will is conclusive upon the parties to the proceedings and other parties who had notice of them on all questions of testamentary capacity, the absence of fraud or undue influence, and due execution of the Will. However, probate does not preclude inquiry into the validity of the Wills provision or their proper construction or legal effect.¹³

Probate is required for the administration of the estate of a deceased who died testate. Probate is the authority that validates the powers of an executor derived from a will. It is granted upon an application made to the Probate Registrar by an interested person, either personally or through his or her solicitor. In Nigeria, the Probate Registry, under the supervision of the High Court, has the exclusive jurisdiction to grant probate in respect of a deceased estate.¹⁴

2.2. PROCEDURES FOR GRANT OF PROBATE

There are two procedures for the grant of probate of a Will and the procedure depends on whether the application for probate is contentious or non-contentious. A common form is granted for a non-contentious application while a solemn form is granted for a contentious application.

An application for the grant of probate in common form is usually made ex-parte. The procedure is carried out by the Registrar of the High Court upon an application by the executors. It involves establishing that it was in fact the testator (the maker of the Will) who died; that the Will was properly signed and attested and that the executors have been appointed. The procedure is usually employed where it is not anticipated that there would be any challenge to the grant of probate. Once those requirements have been fulfilled and there is no caveat entered against the grant, the propounders of the Will would have made out a prima facie case of entitlement to the grant. But the decision is subject to being re-opened by a party who had no notice of the application.

On the other hand, where the Will is being contested, it would involve a trial at the High Court. The executors must apply in solemn form which means a statement of claim is filed under the standard procedure for civil proceedings in the High Court. The party who is contesting the Will would be named as a defendant. The party would then have the opportunity of filing a statement of defence and/or a counterclaim if he so desires.

In a situation where the executors are applying for the grant of probate in solemn form, they are propounding the Will and must begin by leading evidence to show, prima facie, that the testator had the necessary testamentary capacity to make the Will and that there was due execution. Thereafter, the onus would shift to the challenger to disprove the assertion. And the judgment given in the suit is final for all parties who had notice of the proceedings unless a later Will of the testator is found.¹⁵

The propounder of a Will is an executor or administrator who offers a Will or other testamentary document for admission to probate.¹⁶

A Will is being propounded when an application for probate of the Will is lodged by the executors with the Probate Registrar. Before probate is granted, the Registrar usually publishes a notice to enable any interested party to enter a caveat usually to contest the validity of the Will. If there is a dispute as to the validity of the Will, during the pendency of the application for probate, the propounder of the Will then has the burden of proof and the duty to first present credible evidence that prima facie the testator had testamentary capacity to make the Will and that there was due execution of the Will.¹⁷

2.3. GRANT OF PROBATE WHERE THE TESTATOR IS DOMICILED OUTSIDE NIGERIA

Where the testator was domiciled outside Nigeria, probate can either be granted by the Probate Registry of the state where the deceased was last domiciled in Nigeria or the Probate Registry where his or her properties are situated.

Where the testator was domiciled outside Nigeria, the Executors named in the Will shall be entitled to probate. Unless the court makes a contrary order that probate be granted to any other person, the executors are the first that are entitled to apply for grant of probate.¹⁸ Other person that may be granted probate on the order of the court are:

1. Persons entrusted with the administration of the estate by the court.
2. Persons entitled to administer the estate by law.
3. Such persons as the judge may direct.¹⁹

A grant of probate of a Will can be revoked if the grant was obtained fraudulently or where an executor obtains probate of a Will whilst an action as to its validity is pending in another competent court.²⁰

CONCLUSION

The various laws and rules made on Administration of Estate of a deceased person is to verify claims of people claiming entitlements to the deceased person's estate. Without these measures put in place, a lot of persons entitled to the deceased's estate will be cheated out of what rightfully belongs to them.

The court has held in several cases that a testator's wishes must prevail,²¹ so the various probate rules and laws are not to cause hardship on the beneficiaries. On the contrary, it is to ensure that the devolution of the deceased's estate is done rightly and that the beneficiaries are well catered for after all debts and death expenses has been paid.

Footnotes

1. "Overview Of Probate Laws And Probate Registry In Nigeria – Wills/ Intestacy/ Estate Planning – Nigeria" https://www.mondaq.com/nigeria/wills-intestacy-estate-planning/1047414/overview-of-probate-laws-and-probate-registry-in-nigeria

2. In Re Odutola (2002) 16 NWLR (Pt. 794) 470 C.A.

3. Mallam v. Mairiga (1991) 5 NWLR (Pt. 189) 114 C.A

4. Administration of Estate Under Islamic Law: Practice and Procedure in Nigeria by Prof. Bala Babaji Department of Islamic Law, Faculty of Law, Ahmadu Bello University, Zaria. Being a Paper Presented at The Annual Refresher Course for Judges and Kadis with the Theme: Promoting Public Confidence in the Administration of Justice, organized by the National Judicial Institute (NJI), Abuja, Held at Andrews Otutu Obaseki Auditorium, NJI, From 21^st – 25^th March 2022)

5. Akintunde Essain Legal Illuminations Application for Probate and Letters of Administration in Nigeria online https:///akintundeesan.blogspot.com/2013/06/probate-and-letters-of-administration.html

6. Ibid

7. Administration of Estate Under Islamic Law: Practice and Procedure in Nigeria by Prof. Bala Babaji Department of Islamic Law, Faculty of Law, Ahmadu Bello University, Zaria. Being a Paper Presented at The Annual Refresher Course for Judges and Kadis with the Theme: Promoting Public Confidence in the Administration of Justice, organized by the National Judicial Institute (NJI), Abuja, Held at Andrews Otutu Obaseki Auditorium, NJI, From 21^st – 25^th March, 2022)

8. "An Overview of The Law of Succession in Nigeria" https ://femiatoyebi.com.ng/an-overview-of-the-law-of-succession-in-nigeria/

9. Olowu v. Olowu (1994) 4 NWLR (Pt. 336) 90 C.A. P. 95. para. F

10. Ibid

11. "Step By Step Guide On Application For Letters Of Administration In Nigeria – Wills/ Intestacy/ Estate Planning – Nigeria" https://www.mondaq.com/nigeria/wills-intestacy-estate-planning/1241752/step-by-step-guide-on-application-for-letters-of-administration-in-nigeria

12. Bakare v. Bakare (2012) 16 NWLR (Pt. 1325) 29 C.A. P.45, paras D-E

13. Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151 S.C. (P. 181, paras. D-F)

14. "Grant of probate and letter of administration in Nigeria – Lexology" https://www.lexology.com/library/detail.aspx?g=eda292df-5615-4de3-a0aa-930667e4ece6

15. Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151 S.C. pp. 181, paras. F-H;193-194, paras. E-C

16. Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151 S.C. (P. 193, paras. D-E)

17. Nsefik v. Muna (2014) 2 NWLR (Pt. 1390) 151 S.C. pp. 182, paras.C-D; 191, paras. C-F. See also Okelola v. Boyle (1998)2 NWLR (Pt. 539) 533.

18. "Procedure for grant of probate in Nigeria" https://www.resolutionlawng.com/procedure-for-grant-of-probate-in-nigeria/

19. Ibid

20. Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR (Pt. 627) 445 S.C.

21. Igboidu v Igboidu (1999) 1 NWLR pt 585 p27)

Originally published January 21, 2024

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.