Introduction
Death we know is inevitable, but the uncertainty that often follows the death of a person with respect to its estate can be eliminated or reduced through proper planning in line with the applicable laws. Properties and Assets like Houses, land, bank accounts, shares, businesses can become the subject of prolonged family disputes where adequate arrangements have not been made during the deceased’s lifetime. Estate administration is therefore the legal framework for identifying, protecting, managing and distributing the assets and liabilities of a deceased person to those legally entitled to them. The applicable procedure depends on several factors, including whether the deceased left a valid Will, the State in which the estate is administered, the nature and location of the property, marital status and where applicable, customary or Islamic law.
The two principal means of estate administration are Probate and Letters of Administration. Where a person dies leaving a valid Will, the executors named in the Will ordinarily apply for a Grant of Probate. Probate gives the executors the legal authority to administer the estate. Where a person dies without a valid Will, the estate is administered through Letters of Administration granted to persons entitled under the applicable law. The distinction is important because being a child, spouse, relative or “next of kin” does not, by itself, confer authority to deal with the deceased’s property. A person cannot simply withdraw funds from the deceased’s bank account, sell estate property or transfer shares merely because of the relationship with the deceased. The appropriate grant of probate or Letters of Administration is ordinarily required. The Supreme Court recognized the importance of Probate in Fadayomi v. Sadipe (1986) 2 NWLR (Pt. 25) 736 where it affirmed that obtaining Probate clothes an executor with the necessary legal authority to act.
Wills and the Grant of Probate
A Will is a legal document by which a person, known as the testator, expresses his or her wishes concerning the disposition of property and other matters to take effect upon death. A properly prepared Will should identify the beneficiaries, appoint executors, provide for specific gifts and contain a residuary clause dealing with assets not specifically mentioned. The property intended to be given should also be described with sufficient certainty to avoid ambiguity.
Requirements for a Valid Will in Lagos State
In Lagos State, section 4(1) of the Wills Law, Cap. W2, Laws of Lagos State prescribes important formal requirements for the execution of a Will. Among other things, the Will must be in writing, signed or acknowledged by the testator in the presence of at least two witnesses present at the same time, and attested and subscribed by the witnesses in the presence of the testator. These requirements are mandatory, as reaffirmed by the Court of Appeal in Sokale & Anor. v. Sokale & Ors. (2021) LPELR-56360 (CA) with reliance on the Supreme Court’s decision in Ariori v. Elemo (1983) 1 SCNLR 1. Beyond formal execution, the testator must possess the necessary testamentary capacity and make the Will freely, without fraud, coercion or undue influence.
Depositing a Will and Obtaining Probate
A Will may be deposited at the Probate Registry for safe custody, but such deposit should not be confused with the grant of Probate. Probate is obtained after the death of the testator through the prescribed legal process. Upon the death of the testator, the original Will is presented to the appropriate Probate Registry and the executors apply for Probate. The Will is therefore not ordinarily “read” to the family in the dramatic manner sometimes portrayed in films; rather, it is proved through the probate process. Where the validity of the Will is disputed, the matter may become contentious probate litigation.
Procedure for the Grant of Probate
Where the deceased left a valid Will, an application for Probate is made to the Probate Registrar in the prescribed Probate Form. The application must be supported by the appropriate affidavit, the original Will and the required evidence of death. The Rules require the Court to examine the Will to ascertain that it was duly executed by the testator and subscribed by the requisite witnesses. Where there is any doubt as to due execution, alterations, erasures, obliterations, the date of execution or the testamentary documents referred to in the Will, the Court may require further affidavits or evidence before admitting the Will to probate.
Who Is Entitled to Apply for Probate?
The person primarily entitled to Probate is the executor named in the Will, followed by persons having subsequent interests in the residue or estate in the order of priority prescribed by Order 62 Rule 22. Where an executor renounces, fails to prove the Will, or disputes arise as to entitlement, the Court may require the appropriate parties to enter appearance or proceed by citation. The original Will is retained in the Probate Registry and the Probate, once granted, constitutes the authority of the executor to administer the estate.
Challenging a Will and the Duties of Executors
A Will may be challenged on recognized legal grounds, including failure to comply with statutory formalities, lack of testamentary capacity, undue influence, fraud, forgery, lack of knowledge and approval, subsequent revocation or an invalid disposition. However, mere dissatisfaction with the contents of a Will does not, by itself, render it invalid. The person challenging the Will must establish a legally recognized ground. Once Probate is granted, the executors become the legal personal representatives of the deceased. They are responsible for securing the estate, collecting debts owed to the deceased, paying legitimate debts and expenses and distributing the estate in accordance with the Will and applicable law. They do not become the beneficial owners of the estate merely because Probate has been granted.
Grant of Letters of Administration
Who Is Entitled to Letters of Administration?
Where a person dies intestate, that is, without a valid Will, the applicable law in the state determines who is entitled to inherit and how the estate is to be administered. In Lagos State, the Administration of Estates Law Cap. A3, Laws of Lagos State, read together with the applicable Probate Rules and Order 63 of the High Court of Lagos State (Civil Procedure) Rules 2019 provides the statutory framework for grant of Letters of Administration. Under section 49 of the Lagos Administration of Estates Law, an order of priority applies to persons entitled to seek Letters of Administration, generally beginning with the surviving spouse and children and extending to other categories of relatives and, in appropriate circumstances, creditors and the Administrator-General. Being a close relative or next of kin does not, without more, confer authority to administer the estate.
The Duties and Responsibilities of Administrators
Letters of Administration authorize the appointed administrators to collect, protect, manage and distribute the estate. Like executors, administrators act as legal personal representatives and do not become beneficial owners of the deceased’s property. They must properly identify and preserve the assets, collect debts owed to the estate, settle legitimate liabilities and expenses, account for income received and distribute the remaining estate to those entitled under the applicable law. Estate property may, where authorized and necessary for proper administration, be sold, but the proceeds remain estate funds and must be properly accounted for. An administrator who misappropriates estate property or its proceeds may incur personal liability.
Caveats and Objections to a Grant
Application for Probate or Letters of Administration may also become contentious. A person with a genuine interest in an estate may enter a caveat to prevent the Probate Registry from issuing a grant without the objection being considered. A caveat does not determine the merits of the dispute; rather, it preserves the caveator’s opportunity to challenge the proposed grant through the prescribed procedure. Under Order 63 Rule 18 of the High Court of Lagos State (Civil Procedure) Rules 2019, the procedure for caveats includes notification of the applicant and subsequent steps for determining the objection.
Procedure for the Grant of Letters of Administration
Where the deceased died intestate, or there is no executor able or willing to prove the Will, an application for Letters of Administration is made to the Probate Registrar in the prescribed form. The applicant must provide evidence of the death, disclose the value of the estate and file a full declaration of the deceased’s personal property and its value. The Court will make such enquiries as it considers necessary before the grant is issued.
Administration Bonds, Sureties and Court Requirements
A person granted Letters of Administration is generally required to execute an Administration Bond and provide responsible sureties acceptable to the Court, although the Rules provide exceptions and permit the Court to modify the security requirements in appropriate circumstances. The bond is ordinarily in a penalty amount representing twice the value of the estate, subject to the Court’s discretion. The Court determines entitlement and priority among applicants, and where persons have equal entitlement, a dispute is brought before the Judge for determination before the grant is sealed.
In either case, the Probate Registrar processes the application, the Court undertakes any necessary enquiries, and the grant is sealed only after the prescribed requirements have been satisfied. A person who wishes to prevent the grant from being sealed may enter a caveat at the Probate Registry; an effective caveat prevents the sealing of the grant until the issue is dealt with in accordance with the Rules.
Waiting Periods for the Grant
Importantly, the Rules also prescribe waiting periods: Administration with the Will annexed cannot issue within 14 days of death, while Letters of Administration without the Will annexed cannot issue within 21 days of death.
In practical terms, therefore, the process is: death of the deceased → preparation and filing of the appropriate Probate/Administration application at the Probate Registry → filing of the supporting affidavit, Will (where applicable), death evidence and estate particulars → examination and enquiries by the Probate Judge/Registrar → compliance with any notice, citation, caveat, bond or surety requirements → payment of applicable fees and satisfaction of the Registry/Court → sealing and issuance of the Grant.
Preservatory Orders Pending Litigation
Estate disputes may concern the validity of a Will, entitlement to property, beneficiaries, marriage, ownership of particular assets, customary law or the appointment and conduct of personal representatives. Nigerian courts may make appropriate orders for the preservation and administration of an estate while such disputes are being determined. In Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR (Pt. 627) 445, the Supreme Court considered the statutory powers available where proceedings concerning the validity of a Will or grant are pending.
Conclusion: Why Estate Planning Matters
Ultimately, estate administration should not begin with a family dispute after death. A properly drafted and executed Will provides an opportunity to express one’s wishes, identify beneficiaries, appoint trusted persons to administer the estate and make appropriate provision for dependants and significant assets. It should be safely preserved and reviewed whenever there are substantial changes in family or financial circumstances.
Estate planning is therefore not merely about distributing wealth; it is about providing certainty for those left behind. Every Nigerian with significant assets, family responsibilities or dependants should consider making a valid Will and obtaining appropriate legal advice to ensure that the person’s property, family and wishes are not left to uncertainty after death.
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.
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