Order 63 — Probate (contentious) Procedure

(1) Where a person appointed as an executor under a Will fails or neglects or delays to apply for a Grant of Probate in order to administer the estate, and has not renounced probate, with due regard to the degree of priority, either the next of kin of the deceased, a beneficiary under the Will or some other persons entitled to the Grant of Probate (known as ‘the Citor’), may proceed by way of Citation to compel the executor or executors (known as ‘the Cites’) to accept or refuse a Grant of Probate.

(2) To proceed by way of Citation, the Citor shall:

(a) have entered a caveat in the manner provided under this Rules to prevent a grant of probate from being issued;

(b) produce a copy of the Will, attached to the citation;

(c) set out the reason for its issue, the interest of the citor issuing it and the order the citor is asking to be made in the Citation;

Provided that where the citor does not have a copy of the Will or testamentary document, for the purposes of the citation a subpoena to produce same shall be contemporaneously served on the person in possession to produce it.

(3) A citation shall not issue under the seal of the Court until an affidavit, in verification of the averments it contains, has been filed in the Registry.

(4) Upon issue, the citation shall be served on the citee in the manner processes are prescribed to be served under these Rules, requiring him to enter an appearance with the registry within 8 days from the date of service on him inclusive of the date of such service.

(5) Upon being served, the citee may:

(a) apply for grant of probate, in which case the citation abates;

(b) provide a valid explanation as to why probate has not yet been granted or applied for, and if such explanation is offered, the Court shall dismiss the citation; or

(c) renounce their executorship.

(6) Upon proof that the citee was served:

(a) Where he fails to enter an appearance, the citee may be deemed to have constructively renounced probate or the citor can seek an order either requiring the Citee to take the Grant out within a specified time or the removal of the Citee as an executor or the Citor can himself apply for grant of probate or a grant of administration with Will annexed in relation to the testamentary document.

(b) Where the Citee enters an appearance but renounces probate or, while not renouncing probate, the Citee still fails to apply for Grant, the Citor can apply for himself a grant of probate or a grant of administration with Will annexed in relation to the testamentary document.

(7) Where there are conflicting claims for a grant among the members of a class entitled to administration, the grant shall be made to such of the claimants as the Registrar shall select having given not less than 21 days’ notice to the rival claimants, or on objection made in writing within the said period, to such person as the Court shall select.

(1) If a deceased person has made several wills and a beneficiary discovers or apprehends that they may receive less under an earlier Will or under intestacy, such beneficiary (the citor) may apply to propound the Will by way of citation, thereby compelling the persons (the citees) who stand to benefit under the later Will to decide whether to propound or prove it, and make it susceptible to be contested, and upon failure to propound or prove the Will, for it to be assumed to be invalid.

(2) A citation to propound a Will shall be directed to the executors named in the Will and to all person interested in it.

(3) If time limited for appearance has expired, the citor may-

(i) in the case where no person cited has entered an appearance, apply to the Registrar for a grant as if the Will were invalid and such application shall be supported by an affidavit showing that the citation was duly served; or

(ii) in the case where the person cited who has entered an appearance failed to proceed with reasonable diligence to propound the Will, apply to the Registrar by summons, which shall be served on every person cited who has entered an appearance, for such an order as is mentioned in paragraph (a) above.