Order 56 — Grant of Probate or Letters of Administration With Will

(1) Any person may deposit his Will for safe custody in the Probate Registry sealed under his own seal and the seal of the Court.

(2) An original Will, of which Probate or Administration with Will annexed is granted, shall be filed and kept in the Probate Registry in such manner as to secure its safety and convenient inspection.

(3) A copy of such Will and of the Probate or Administration shall be immediately preserved in the Registry.

(1) No original Will shall be given out for any purpose without the Order of a Judge.

(2) A certified transcript of the Probate or Administration with the Will annexed may be obtained under the seal of the Court.

(1) On receiving an application for Administration with Will annexed, a Judge shall inspect the Will to ascertain whether it appears to be:
(a) signed by the testator or by some other person in his presence and by his direction; and
(b) subscribed by two witnesses according to the applicable law.

(2) Where the Will appears to be signed and subscribed, the Judge shall refer to the attestation clause and consider whether the wordings state that the Will has been executed in accordance with the law and the Judge shall not proceed further unless the Will appears to be so signed and subscribed.

(1) Where a Will contains no attestation clause or the attestation clause is insufficient or where it appears to the Judge that there is doubt about the due execution of the Will, he shall before admitting it to proof require an affidavit as to due execution from one or more of the attesting witnesses, or if no attesting witness is conveniently available, from any other person who was present at the time the Will was executed.

(2) Where no affidavit can be obtained in accordance with sub-rule 1 of this Rule, the Judge may, having regard to the desirability of protecting the interest of any person who may be prejudiced by the Will, require evidence by affidavit from any person he deems fit to show that the signature on the Will is the handwriting of the deceased, or on any other matter which may raise a presumption in favour of due execution of the Will.

(3) Where the Judge after considering the evidence is satisfied that the Will was not duly executed, he shall refuse probate and mark the Will accordingly.

Where both attesting witnesses are dead or if from other circumstances such an affidavit cannot be obtained from either of them, resort shall be had to an affidavit sworn to by other persons present at the execution of the Will; but if no such affidavit can be obtained, proof shall be required of:
(a) that fact, and of the handwriting of the deceased and the attesting witnesses; and
(b) any circumstances raising a presumption in favour of the execution of the Will.

(1) Where in a Will there is an obliteration, interlineation or other alteration which is not authenticated in the manner prescribed by law or by the re-execution of the Will or by the execution of a codicil, the Judge shall require evidence to show whether the alteration was present at the time the Will was executed and shall give direction as to the form in which the Will is to be proved: Provided that this sub-rule shall not apply to any alteration which appears to the Judge to be of no practical importance.

(2) Where there is doubt as to the date on which the Will was executed, the Judge may require such evidence as he deems necessary to establish the date.

(1) The Judge on being satisfied that the Will was duly executed, shall inspect it to see whether there are any interlineations, alterations, erasures or obliterations appearing in it and requiring to be accounted for.

(2) Interlineations, alterations, erasures and obliterations are invalid unless such:
(a) existed in the Will at the time of its execution; or
(b) if made afterwards, have been executed and attested in the mode required by the applicable law; or
(c) have been made valid by the re-execution of the Will or by subsequent execution of codicil to the Will.

(3) Where interlineations, alterations, erasures or obliterations appear in the Will, unless duly executed or recited in or otherwise identified by the attestation clause, an affidavit in proof stating that the same existed in the Will before its execution, shall be filed.

(4) Where no satisfactory evidence is adduced in respect of the time when an erasure or obliteration was made and the words erased or obliterated are not entirely effaced but can on inspection of the Will be ascertained, same shall form part of the probate.

(5) Where any words have been erased which might have been of importance, an affidavit shall be required.

Any appearance of attempted revocation of a Will by burning, tearing or otherwise and every circumstance leading to a presumption of revocation by the testator shall be accounted for to the Judge.

(1) The Judge may require an affidavit from any person for the purpose of satisfying himself regarding any matter referred to in Rules 4, 5, 6 and 7 of this Rule.

(2) In any such affidavit sworn by attesting witness or other person present at the time of the execution of the Will, the deponent shall depose to the manner in which the Will was executed.

Where the testator was blind or illiterate, the Judge shall not grant administration with the Will annexed, unless the Judge is satisfied by proof or by what appears on the face of the Will, that the Will was read over to the deceased before its execution or that he had at that time knowledge of its contents.

(1) Where a Will contains a reference to any document of such a nature that may raise the question whether or not it ought to form a constituent part of the Will, the Judge shall require the production of the document to ascertain whether it is entitled to Probate; and if it is not produced, a satisfactory account of its non-production shall be given.

(2) Where there are vestiges of sealing wax or wafers or other marks on a Will, leading to the inference that any documents may have at some time been annexed or attached to a Will, a satisfactory account of the document shall be required and if it is not produced, a satisfactory account of its non-production shall be given.

(3) A document cannot form part of a Will unless it was in existence at the time when the Will was executed.

Where a person appointed Executor in a Will survives the testator but dies after appearing to prove the Will without having taken Probate or, having been called on by the Court to take Probate does not appear, his right in respect of the executorship shall cease entirely without any further renunciation by such Executor and the administration of the estate of the testator shall proceed as if that person had not been appointed Executor.

(1) Any person having in his possession or under his control any paper or writing of a deceased person being or purporting to be testamentary papers shall immediately deliver the original to the Probate Registrar of the Court.

(2) Where any person fails to deliver such paper or writing within one month after having had knowledge of the death of the deceased, he shall be liable to a fine of not less than two hundred thousand naira as the Judge having regard to the condition of such person in default and other circumstances of the case may deem fit to impose.

Where it appears that any paper of the deceased being or purporting to be testamentary paper is in the possession of or under the control of any person, a Judge may upon an ex-parte application, whether a suit or proceeding respecting Probate or Administration is pending or not, order him to produce the paper and bring it into Court.

(1) Where it appears that there is reasonable grounds for believing that any person has knowledge of any paper being or purporting to be testamentary paper although it is not shown that the paper is in his possession or under his control a Judge may upon an application made ex-parte whether a suit or proceedings in respect of Probate or Administration is pending, order such person to appear in Court for examination in respect of same or on interrogatories.

(2) Where satisfied after examination, the Judge may order the person to produce the paper in Court.

The Judge may on the application of any person claiming an interest under a Will, give notice to the Executor therein named to come in and prove the Will or to renounce Probate and such Executor shall within twenty-one days after notice, come in and prove or renounce the Will.

Where any Executor named in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased and does not apply for Probate within three months after the death or after the termination of any suit or dispute in respect of Probate or Administration, he may in addition to any other liability be deemed to be in contempt of Court and shall be liable to such fine of not less than one hundred thousand naira as the Judge may deem fit to impose.

(1) Where the Judge considers that in any particular case a photocopy of the original Will would not be satisfactory for purposes of record, he may require that an engrossment suitable for photo reproduction be lodged.

(2) Where a Will contains traces of alteration which are not admissible to proof, there shall be lodged an engrossment of the Will in the form in which it is to be proved.

(3) Any engrossment lodged under this Rule shall reproduce the punctuation, spacing and division into paragraphs of the Will and if it is one to which sub-rule 2 of this Rule applies, it shall be made book wise on durable paper following continuously from page to page.

(4) Where any pencil writing appears on a Will, a copy of the Will or of the pages or sheets containing the pencil writing with portions of the original which appears in pencil underlined in red ink shall be lodged.

Without prejudice to the right of an attesting witness or spouse of an attesting witness to a grant in another capacity, the witness or spouse of such witness shall not have any right to a grant as a beneficiary named in the Will.

(1) Where all the persons entitled under a Will to the estate of the deceased have assigned their whole interest in the estate to any person, the assignee shall replace the assignor for a grant of Probate in order of priority or if there are more than one assignor, the assignor with the highest priority, in the absence of a proving Executor.

(2) Where there are two or more assignees, Probate may be granted to anyone or more but not exceeding four of them with the consent of the other assignees.

(3) In any case where Probate is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Registry.

Where the deceased died after the commencement of this Order, entitlement of any person to a grant of Probate or Administration with the Will annexed, shall be determined based on priority as follows:
(a) the Executor;
(b) any residuary legatee or devisee holding in trust for any other person;
(c) any residuary legatee for devisee;
(d) 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: Provided that:
(i) a residuary legatee or devisee whose legacy or devise is vested in interest shall be preferred to one entitled on the happening of a contingency unless the Judge otherwise directs;
(ii) where the residue is not in terms wholly disposed of, the Judge may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the estate ascertained at the time of the application for the grant, allow a grant to be made subject to Order 55 Rule 14, to any legatee or devisee entitled to or to a share in the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the Will;
(iii) any specific legatee or devisee or any creditor or, subject to Order 55 Rule 14(3), the personal representative of any such person or where the estate is not wholly disposed of by Will, any person who notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion to it; and
(iv) any specific legatee or devisee entitled on the happening of any contingency or any person having no interest under the Will who would have been entitled to a grant if the deceased had died wholly intestate.

Where the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant of Administration with the Will attached and has consented to such administration being granted to any person who would be entitled to his own estate if he himself died intestate, administration may be granted to not more than four of such persons: Provided that a surviving spouse shall not be regarded as a person in whom the estate has vested absolutely unless he would be entitled to the estate whatever its value maybe.

(1) Renunciation of Probate by an Executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity, unless he expressly renounces such right.

(2) No person who has renounced a grant in one capacity may obtain a grant in another capacity without the leave of Court.

(3) A renunciation of Probate or Administration may be retracted at any time on the Order of the Judge: Provided that the leave to retract a renunciation of Probate may only be granted in exceptional circumstances after a grant has been made to such other person entitled in a lower degree.

(1) A person granted Probate or Administration with Will attached by a Court outside the State for any person authorised in writing on his behalf, may apply for the resealing of the Probate or Administration.

(2) Upon an application for the resealing which shall be supported by an affidavit sworn to by the person making the application, a Tax Clearance Certificate shall be lodged as if the application is for the grant in the State and an advertisement placed in such manner as the Judge may direct.

(3) On an application for the resealing of a grant:
(a) the Judge shall not require a surety except where it appears to him that the Grant is made to a person or for the purpose mentioned in Order 57 Rule 4(a) and (b) or except where he considers that there are special circumstances making it desirable to require a surety;
(b) Order 57 Rule 4(2), (4), (5) and (6) and Order 57 Rule 3(4) shall apply with necessary modification; and
(c) a guarantee entered into by a surety shall be as in Probate Form 3 with such variations as circumstances may require.

(4) Except by leave of the Judge, no grant shall be resealed unless it was made to such a person as is mentioned in Rule 24(3)(a) or (b) of this Order or to a person to whom a grant could be made under Rule 10(2) of Order 55.

(5) No limited or temporary grant shall be resealed except by leave of the Judge.

(6) 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.

(7) The Registrar shall send notice of the resealing to the Court which made the Order of grant.

(8) Where the 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 that resealed the Will.

(1) Notices in the nature of Citation shall be given in such manner as the Judge directs.

(2) Every Citation shall be settled by the Registrar before being issued.

(3) Every averment in a Citation and such other information as the Registrar may require shall be verified by an affidavit sworn to by the person issuing the Citation or by any of them if more than one: Provided that the Registrar may in special circumstances accept an affidavit sworn to by the Legal Practitioner of such person.

(4) The Citor shall enter a caveat before issuing a Citation.

(5) Every Citation shall be served personally on the person cited unless a Judge, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.

(6) Every Will referred to in a Citation shall be lodged in the Registry before the Citation is issued, except where the Will is not in the Citor’s possession and the Judge is satisfied that it is impracticable to require it to be lodged.

(7) A person who has been cited to appear:
(a) may, within eight days of service of the Citation upon him inclusive of the day of such service, or at any subsequent time if no application has been made by the Citor under of Rule 26 or of Rule 27 of this Order, enter an appearance in the Registry by filing Probate Form 4 and making an entry in the appropriate book; and
(b) shall serve on the Citor a copy of Form 5 sealed with the seal of the Registry.

(1) A Citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right to the grant.

(2) Where power to make a grant to an Executor has been reserved, a Citation calling on him to accept or refuse a grant may be issued at the instance of the Executors who have proved the Will or the Executors of the last survivor of the deceased Executors who have proof.

(3) A Citation calling on an Executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of six months from the death of the deceased: Provided that no Citation to take a grant shall issue while proceedings regarding the validity of the Will is pending.

(4) A person cited who is willing to accept or take a grant may, upon filing an affidavit showing that he has entered an appearance and that he has not been served by the Citor with notice of an application for a grant to himself, apply ex-parte to the Judge for a grant.

(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the Citor may in the case of Citation:
(a) under sub-rule (1) of this Rule apply to the Judge for a grant to himself;
(b) under sub-rule (2) of this Rule apply to the Judge for an Order that a note be made on the ground that the Executor in respect of whom power was reserved has not appeared after being duly cited and that his rights or interests in respect of the grants have ceased; and
(c) under sub-rule (3) of this Rule, apply to the Judge by Summons which shall be served on the person cited for an Order requiring such person to take a grant within a specified time or for a grant to himself or any other person specified in the Summons.

(6) An application under sub-rule 5 of this Rule shall be supported by an affidavit stating that the Citation was duly served and that the person cited has not entered an appearance.

(7) Where any person cited has entered an appearance but has not applied for a grant under sub-rule (4) of this Rule or has failed to prosecute his application with reasonable diligence, the Citor may in the case of a citation under:
(a) sub-rule (1) of this rule, apply by Summons to the Judge for an Order for a grant to himself;
(b) sub-rule (2) of this Rule, apply by Summons to the Judge for an Order striking out the appearance and for endorsement on the grant of such note as is mentioned in sub-rule 5(b) of this Rule; and
(c) sub-rule (3) of this Rule, apply by Summons to the Judge for an Order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the Summons; and the Summons shall be served on the person cited in each case.

(1) A Citation to propound a Will may be issued at the instance of a Citor having any interest contrary to that of the Executor or such other person and shall be directed to the Executor named in the Will and to the other persons interested in the Will.

(2) Where the time limited for appearance has expired, the Citor may, where:
(a) no person cited has entered an appearance, apply to the Judge for a grant as if the Will was invalid and such application shall be supported by an affidavit stating that the Citation was duly served; and
(b) the person who has entered an appearance has failed to propound the Will with reasonable diligence, apply to a Judge by Summons which shall be served on the person Cited who has entered an appearance for the Order mentioned in sub-rule (a) above.