Order 58 — Proceedings in Probate and Administration Actions

Suits in respect of Probate or Letters of Administration shall with necessary modifications, be subject to Order 5 rule 4, Order 7 Rule 1(l) and Order 8 Rule 6 and the same rules of procedure as suits in respect of civil claims in these Rules.

The Originating Process shall state whether the Claimant claims:
(a) as Creditor, Executor, Administrator, Beneficiary, next-ofkin; or
(b) in any other capacity.

The service of a Writ of Summons will be allowed out of Nigeria in accordance with the provisions of these Rules.

(1) A party shall state with regard to every defence which is pleaded:
(a) the substance of the case on which the defence intends to rely; and
(b) where it is pleaded that the Testator was not of sound of mind, memory and understanding, particulars of any specific instances of delusion shall be pleaded.

(2) Except by leave of a Judge, no evidence shall be given at the trial of any other issue apart from the issues mentioned in sub-rule 1 of this Rule.

Where the Claimant disputes the interest of the Defendant, he shall allege in his Statement of Claim that he denies the Defendant’s interest.

The party opposing a Will shall be at liberty to cross-examine the witnesses produced in support of the Will and shall not in any event be liable to pay the cost of the other side unless the Judge finds that there was no reasonable ground for opposing the Will where he gives notice with his defence to the other party setting up the Will that he merely insists upon the Will being proved in solemn form of law.

A Judgement or an Order for a general account of the personal estate of a Testator or an Intestate shall contain a direction for an enquiry as to what part of such personal estate is outstanding or undisposed of, unless the Judge shall otherwise direct.

(1) A person who is or has been a party to any proceeding in the capacity of Trustee, Personal Representative or mortgagee shall, unless the Judge otherwise orders, be entitled to the cost of such proceeding in so far as such cost is not recovered from or paid by any other person out of the fund held by the Trustee or Personal Representative or the mortgagee, as the case may be.

(2) The Judge may otherwise order cost only on the ground that the Trustee, Personal Representative or mortgagee has acted improperly or unreasonably or for his own benefit.

(1) An Originating Summons may be taken out for the reliefs provided under sub-rule 2 of this Rule by:
(a) the Executor or Administrator of a deceased person or any of them or;
(b) the Trustees or any of them under any deed or instrument; or
(c) any person claiming to be interested in the relief sought as Creditor, Beneficiary, next-of-kin, heir-at-law of a deceased person; or
(d) a cestui-que trust under any deed of trust or instruments; or
(e) a person claiming by assignment or administration under any such Creditor or other person.

(2) The reliefs referred to in sub-rule 1 of this Rule include:
(a) any question affecting the rights or interests of the person claiming to be Creditor, Beneficiary, next-of-kin or heir-at-law or cestui-que trust;
(b) the ascertainment of any class of Creditors, Beneficiary next-of-kin or others;
(c) the furnishing of any particular account by the Executors or Administrators or Trustees and the vouching, when necessary, of such account;
(d) the payment into Court of any money in the hands of the Executors or Administrators or Trustees;
(e) directing the Executors or Administrators or Trustees to do or abstain from doing any particular act in their capacity as Executors or Administrators or Trustees;
(f) the approval of any sale, purchase, compromise or other transactions;
(g) the determination of any question arising in the administration of the estate or trust.

Any of the persons named in Rule 9 of this Order may apply for and obtain an Order for:
(a) the administration of the personal or real estate of the deceased;
(b) the administration of the Trust;
(c) any act to be done or step to be taken which the judge could have ordered to be done or taken if any such administration Order has previously been made.

The Originating Summons under Rules 9 and 10 of this Order shall in the first instance be served:
(a) where the Originating Summons is taken out by an Executor or Administrator or Trustee:
(i) for the determination of any question under Rule 9(2) (a), (c), (f) or (g) of this Order, on any person whose right or interests are sought to be affected;
(ii) for the determination of any question under Rule 9(2) (b) of this Order, on any member or alleged member of the class;
(iii) for the determination of any question under Rule 9(2) (c) of this Order, on any person interested in taking such accounts;
(iv) for the determination of any question under Rule 9(2) (d) of this Order, on any person interested in taking such money;
(v) for relief under Rule 10(a) of this Order on the residuary legatee or next of kin or the residuary devisee or heirs as the case may be;
(vi) for relief under Rule 10(b) of this Order, on the cestui-que trust;
(vii) if there is more than one Executor or Administrator or trustee who do not concur in taking out the Originating Summons on such Executor or Administrator or Trustee who do not concur;
(b) where the Originating Summons is taken out by any person other than the Executors, Administrators or Trustees, the Executors, Administrators or Trustees must be served.

The issue of a Summons under Rule 9 of this Order shall not interfere with or control any power or discretion vested in any Executor, Administrator or Trustee except where such interference or control may be necessarily involved in the particular relief sought.

The Judge may not pronounce or make Judgment or Order, whether Summons or otherwise for the administration of any Trust or of the estate of the deceased person, if the question between the parties can be determined without such Judgment or Order.

Upon an application for administration or execution or trust by a Creditor or Beneficiary under a Will, intestacy or deed of trust, where no accounts or insufficient accounts have been rendered, the Judge may, in addition to the power already existing:
(a) order the application to be stayed and the Executors, Administrators or Trustees to render proper statement of their accounts to the Applicant, failing which such Executors, Administrators or Trustees may pay the costs of the proceedings; and
(b) where necessary, to prevent proceedings by other Creditors or persons beneficially interested, make the Judgment or Order for administration with a proviso that no proceedings shall be taken under such Judgement or Order without leave of the Judge.

(1) An application for an Order requiring a person to bring in a Will or to attend for examination may, unless a Probate Action has been commenced, be made to the Court by Originating Summons which shall be served on any Executor, Administrator or Trustee.

(2) An application for the issue of a subpoena to bring in a Will shall be supported by an affidavit setting out the ground for the application, and if any person served with the subpoena denies that the Will is in his possession or control, he may file an affidavit to that effect.

An application for a grant limited to part of an estate may be made to the Judge and shall be supported by an affidavit stating:
(a) whether the application is made in respect of the real estate only or any part of same, or real estate together with personal estate or in respect of trust estate only;
(b) whether the estate of the deceased is known to be insolvent; and
(c) that the persons entitled to a grant in respect of the whole estate in priority to the Applicant have been considered and excluded.

An application for an Order for grant of administration where the goods in the estate are of perishable nature may be made to the Judge and shall be supported by an affidavit setting out the grounds of the application.

An application for leave to swear to the death of a person in whose estate grant is sought shall be supported by an affidavit setting out the grounds of the application and stating particulars of any policies of insurance effected on the life of the presumed deceased.

An Originating Summons may be issued in respect of an application:
(a) for the appointment of a new Trustee without a vesting or other consequential Order;
(b) for a vesting Order or other Order consequential on the appointment of a new Trustee where the appointment is made by a Judge;
(c) for vesting or other consequential Order in any case where a Judgment or order has been given or made for the sale, conveyance or transfer of any land or stock or the suing for or recovering of any chose in action; and
(d) for a fund paid into Court in any case coming within the provisions of Orders 55 to 57 of these Rules.

(1) Where provision for the service of an Originating Summons is not made under this Order, the Originating Summons shall be served on any person the Judge may direct.

(2) Where by the provision of this Order or by any direction given under sub-rule (1) of this Rule, an Originating Summons is required to be served on any person, it shall be served not less than five days before the hearing of the Summons.

Unless the Judge otherwise directs or this Order provides, any notice or any other documents required to be given or served on any person may be given or served by leaving it at, or by sending it by courier to that person’s address for service or if he has no address for service, his last known address or by posting it to that person’s email address or the person’s private social media accounts.

Subject in any particular case to the direction given by a Judge, this Order shall apply to any proceedings which is pending on the date on which these Rules come into operation as well as to any proceeding commenced on or after that date: Provided that where the deceased died before the commencement of these Rules, the right to a grant shall, subject to the provision of any enactment be determined by the Rules in accordance with which the Court would have acted at the date of the death.

(1) In this Order unless the context otherwise requires:
“Authorised Officer” means any Officer of the Registry who is for the time being authorised by Law to administer an Oath or to take any affidavit required for any purpose connected with his duties;
“Gross Values” in relation to any estate means the value of the estate without deduction of debts, encumbrances, expenses or Estate Duty;
“Oath” means the Affidavit required to be shown by an Applicant for a Grant;
“Personal Applicant” means a person other than a Trust Corporation who seeks to obtain a Grant without employing a Legal Practitioner; and “Personal Application” has a corresponding meaning;
“Registrar” means Probate Registrar;
“Registry” or “Probate Registry” means the Probate Registry of the Court; and
“Will” includes a Codicil and any Testamentary Document or copy or reconstruction of it.

(2) Unless the context otherwise requires, a reference in this Order to a Rule or an enactment is a reference to these Rules or enactment as amended, extended or applied by any other Rule or enactment.

(3) The provisions of the Interpretation Act shall apply to the interpretation of this Order.

(4) The provisions of Order 42 shall apply to the computation, extension or abridgement of time under Orders 55 to 57 of these Rules.