Order 59 — Grant of Probate or Administration in General

Where a person subject to the jurisdiction of the court dies, all petitions for the granting of any letters of administration of the estate of the deceased person, with or without a Will attached, and for the granting of probate of the Will of deceased person, and all applications on other matters connected, shall be made to the Probate Registrar of the court.

There shall be kept at the Probate Registry:

(a) Register of Will

(b) Register of letters of administrations.

(c) Register of grant of probate.

Any person who seeks to conduct a search into the register of Wills in order to ascertain whether a deceased died estate or as to whether Letters of Administration has been issued or the process initiated regarding the deceased’s estate, shall apply to the Probate Registrar with a copy of

No grant of Probate or Letters of Administration with Will annexed shall be initiated within 14 days of the death of the deceased and no grant of administration without Will annexed shall be initiated within 21 days of the death.

In furtherance of any provisions under this Order and Orders 60, 61, 62, 63, and 64, the Registrar shall administer such forms as prescribed by this Rules or as he may deem appropriate in circumstances not contemplated by the Rules.

The Court may, where the circumstances of a case require, on the death of a deceased person, or as soon after as may be, appoint and authorize an officer of Court, or some other fit person, to take possession of his property within jurisdiction, or put it under seal, and keep it until it can be dealt with according to law.

(1) Without prejudice to any provisions of these Rules, any person who is interested in a deceased’s estate may file a notice to prohibit (caveat) with the Registrar forbidding the grant of probate or letters of administration (without or with a Will attached) to any person in respect of a deceased’s estate which, if granted, will work to his prejudice or that someone to whom he is a guardian, and upon such filing, the Probate Registrar shall abstain from taking any step to process any application for the grant of probate or letters of administration in respect of the estate indicated.

PROVIDED that the caveat shall remain in force for 6 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of further caveat or caveats.

(2) A notice to prohibit a grant of probate or administration (without or with a Will attached) shall not affect a grant made on the day on which the notice is filed.

(3) The Registrar shall maintain an index of caveats entered in the registry and on receiving an application for a grant in the Registry he shall cause the index to be searched and shall notify the applicant in the event of a caveat having been entered against the issue or sealing of a grant for which application has been made.

(4) A caveator may be warned by the issue from the registry of a warning in a prescribed Form at the instance of a person interested (in this Rule called ‘the person warning’) which shall state his interest and, if he claims under a Will, the date of the Will and shall require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased and every warning or a copy of it shall be served on the caveator.

(5) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the registry and the caveat shall then cease to have effect, and if he has been warned, the caveator shall promptly give notice of withdrawal of the caveat to the person warning.

(6) A caveator who has an interest contrary to that of the person warning, may, within 8 days of service of the warning upon him, inclusive of the day of such service, enter an appearance in the registry by filing an appearance to the warning in the prescribed Form, accompanied with an affidavit disclosing the nature of his interest and promptly serve on the person warning, sealed with the seal of the registry.

(7) A caveator who has no interest contrary to that of the person warning, but wishing to show cause against the sealing of a grant to that person, may, within 8 days of such service, issues and apply for directions, which shall be returnable before the Registrar.

(8) If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the registry an affidavit showing that the warning was duly served and that he has not received application for directions under sub-rule (7), and thereupon the caveat shall cease to have effect.

(9) Upon the commencement of a probate action, the Registrar shall, for each caveat then in force (other than a caveat entered by the claimant), give to the caveator notice of the commencement of the action, and on subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.

Where a person other than the person named as executor or administrator, or an officer of the Court or person authorized by the Court, takes possession of and administers or deals with the property of deceased person, he shall, besides other liabilities he may incur, be liable to a fine as the Court may order.

(1) An applicant for a grant of probate or letters of administration shall file in the Court a true declaration of all the personal and real properties of the deceased and their value.

(2) For purposes of the fees payable on probate and such letters of administration, the value of the property for which the grant is made shall be deemed not to include.

(1) Subject to Rule 11(4) of this Order, an applicant for a grant may apply through a legal practitioner at the probate registry.

(2) A legal practitioner through whom an application for a grant is made shall:

(i) Append a seal to the application.

(ii) Indicate a telephone number, email address and a business address.

(3) Where an applicant desires for a legal practitioner, through whom he applied, to receive the instruments of grant on his behalf when issued, the applicant shall issue a letter of authority to that effect which shall be produced to the Registrar along with the application and a clause of which shall be an indemnity in favour of the Registrar against liability for acting on the letter of authority.

(1) An applicant for a grant may apply in person at the probate registry.

(2) A personal applicant may not apply through an agent, whether paid or unpaid and may not be represented by any person acting or appearing to act as his adviser.

(3) No personal application shall be received or proceeded with where

(a) It becomes necessary to bring the matter before the Court on motion or by action;

(b) An application has already been made by a legal practitioner on behalf of the applicant and has not been withdrawn; or

(c) The registrar directs otherwise.

(4) Where a personal applicant is not able to appear in person to meet the requirements of signing necessary processes before the Registrar or taking necessary oaths before the commissioner for oaths, by reason only that the applicant is resident outside Nigeria, upon an application made by a legal practitioner appointed by the applicant, at full cost to the applicant at a rate the Registrar may determine from time to time, such forms may be forwarded to the applicant at an address provided by him through registered courier company and the necessary signatures appended and oaths taken before a notary public in that jurisdiction, who shall notarize all the processes and further accompany them with a written affirmation by the notary public that the applicant signed the forms and took the oath before him, after which the processes are forwarded to the Probate Registrar through registered courier company.

(5) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared in the registry or may himself prepare such papers and lodge them unsworn, provided all prescribed fees are paid.

A personal applicant shall produce the death certificate of the deceased or such other evidence of the death as the Registrar may approve.

Except the Registrar directs, every oath, affidavit or guarantee required of a personal applicant shall be sworn or executed by all the deponents or sureties before an authorized officer of Court.

(1) An application for a grant shall be supported by an affidavit sworn by the applicant and by such other documents as the Registrar may require.

Where it is necessary to describe the deceased in a grant by some name in addition to his name, the applicant shall state in the affidavit the true name of the deceased along with other name(s) and shall depose that some part of the estate, specifying it, was held in the other name(s) or as to any other reason that there may be for the inclusion of the other name in the grant.

(1) Where there are additional asset(s) not included in the Letters of Administration issued prior, an application for supplementary letters of administration could be made to the Registrar by the administrators of the grant or their legal representative.

(2) An application may be made to the Registrar by the executor of estate for the inclusion of any property or asset not mentioned in the Will of the testator or any additional asset discovered after probate was granted to be included in the estate of the testator.

(3) An application for inclusion of any property not included in the letter of administration shall be processed upon payment of the requisite fees and charges.

(4) The provisions of Rule 9 shall apply to sub rule (1) and (2) of this Rule as it relates to the requirement for a true declaration and valuation of properties and assets affected by this rule.

(1) Every person to whom a grant of probate or letters of administration has or have been made and every administrator appointed by the Court shall, if called upon by the Court, file in Court the account of his administration of the estate.

(2) An executor or administrator who fails within any such period to file his accounts as specified shall be liable to such penalty not less than N1,000.00 as a Court may deem fit to impose, and every such fine shall, on non-payment, be enforceable by distress and where distress is insufficient, by imprisonment for a term not exceeding 6 months.

(3) Where an account if filed in Court under this Rule, the Court shall scrutinize the account and if it appears to the Court that by reason of improper or unjustifiable entries or that the account is not a full and proper account, the Court may give written notice to the person filing the account to remedy such defects within such time as the Court may deem reasonable for the purpose, and on failure to remedy such defects within such time, the person who filed such defective account shall be taken to have failed to file an account within the meaning of the Rule, and proceedings may be taken against that person accordingly.

(4) A Court may, on the motion of an interested party, or on its own, summon any executor or administrator failing to file account, to show cause why he should not be punished.

(5) A Court may for good cause shown extend the time for such filing of accounts.

(6) An executor or administrator who has been granted an extension of time to file such accounts and who fails within such extended time to file such accounts, shall be liable to the penalty stated above and the procedure for bringing him before the Court shall be invoked.

(7) In an appropriate form, the Registrar shall bring to the notice of the Court that fact that any executor or administrator has failed to file his accounts as required by this Rule.

(8) The accounts shall be open, free of charge to the inspection of all persons satisfying the Registrar that they are interested in the administration.

(9) In this Rule, the word “accounts” includes an inventory, an account of the administration, the vouchers in hands of the executor or administrator, and an affidavit in verification.

(1) The duties and/or powers of a Court by this Order and Orders, 60, 61 and 62, shall be undertaken by the Registrar on behalf of the Court subject to any directions which the Chief Judge may give, but a Court shall have power, either on its own or on the application of an interested person, to review any exercise of such duties and/or powers by the Probate Registrar and on such review a court shall have power to cancel anything which may have been done by the Registrar or make such order as may be just in the circumstances.

(2) A Court may refuse to entertain an application under this Rule where it considers that there was an unreasonable delay by the applicant in making his application.

Where an application for grant of probate or letters of administration has been made and a file opened for that purpose but, either due to failure of the applicants to meet requirements imposed or abandonment of the application by the applicant or for any other fault attributable to applicant, the grant is not made within 6 months of the date of commencement, the application shall lapse, and where the applicant desires to pursue the grant thereafter, he shall commence the process afresh, provided that the period during which a publication as required under this Rules is made shall not count towards the calculation of the 6 months period.

Where it appears that Kaduna State, is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant shall be given by the applicant to the Attorney-General of the State, and the Registrar may direct that no grant shall issue within a specified time after the notice has been given.

(1) An application for the resealing of probate or letters of administration granted by the Court of a place not within Kaduna State, shall be made by the person to whom the grant was made or, subject to Rule 11(4) of this Order, by a legal practitioner authorized to apply on his behalf.

(2) On any such application

(a) An affidavit shall be lodged as if the application were one for a grant in Kaduna State;

(b) The application shall be advertised in such manner as the Registrar may direct and shall be supported by an oath sworn by the person making the application.

(3) On an application for the resealing of such a grant, the Registrar shall not require sureties except where it appears to him that there are special circumstances making it desirable to require sureties; where a surety or sureties is/are desirable, the guarantee of such surety or sureties shall be in Form 58 with such modifications or variations as circumstances may require.

(4) Except by leave of the Registrar, no grant shall be resealed unless it was made to such a person mentioned in the Probate or Letters of Administration sought to be resealed.

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

(6) A grant lodged for resealing shall include a copy of any Will or letters of administration to which the grant relates or shall be accompanied by a copy of it certified as correct by or under the authority of the Court by which the grant was made

(7) Upon receipt of an application for resealing; the Registrar shall send notice of the application to the Court which made the grant, at a cost to be borne by the applicant, and if after 21 days no adverse response is received regarding the authenticity of the grant, he may proceed to process the application.

(8) Where notice is received in the Registry from outside Kaduna State, of the resealing of a grant made in Kaduna State, notice of any amendment or revocation of the grant shall be sent to the Court by which it was resealed.

(1) A grant of probate or letters of administration may be revoked by the Probate Registrar for any of the following reasons:

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false claim, or by concealing from the Court something material to the application; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account as necessary to assist the probate registry, or has exhibited an inventory or account which is untrue in a material respect.

(2) Where the Registrar is satisfied that a grant should be revoked, he may make an order accordingly, but in special circumstances, no grant shall be revoked under this Rule except on the application or with the consent of the person to whom the grant was made.

(1) An application for an order for a grant limited to part of an estate may be made to the Registrar and shall be supported by an affidavit stating.

(a) Whether the application concerns the real estate only or any part of it, or real estate together with personal estate or of a trust estate only;

(b) Whether the estate of the deceased is known to be insolvent;

(c) That the persons entitled to a grant of the whole estate in priority to the applicant have been cleared off.

(2) An application for a limited grant shall not be granted where the objective of the application can be achieved by a re-issue of an earlier grant or by a supplementary grant to an existing grant.

An application for leave to swear to the death of a person, in respect of whose estate a grant is sought, may be made to the Registrar and shall be supported by an affidavit setting out the grounds of the application and the evidence in support.

(1) Where a surviving spouse who is the sole personal representative of a deceased is entitled to a life interest in a part of the residuary estate and elects to have the life interest redeemed, he may give written notice of the election to the Registrar by filing a notice in Form 63, with such modifications or variations as circumstances may require, in the registry.

(2) A notice filed under this Rule shall be noted on the grant and the Record and shall be open to inspection.

(1) Where a citizen of any foreign country dies within jurisdiction without leaving a spouse or next-of-kin within jurisdiction, the Registrar shall collect and secure all moneys and other properties belonging to the deceased, and shall then request the Permanent Secretary Ministry of Foreign Affairs to inform the nearest consular officer of that country of the death of the deceased and transmit to him a list of the money(s) and property(ies) of the deceased.

(2) An application may be made to a Court by a consular officer or by any person authorized by him in writing and under the consular seal, for leave to administer the estate of the deceased and the Court may make or vary such order as to security for payment of debts and the method of administration as the Court shall deem fit.

(3) Where an application for grant of probate or letters of administration is made in respect of the estate of the citizen of a foreign country, the application will be processed as if it were that of a Nigerian citizen, without prejudice to the discretion of the Registrar to request such further information or confirmations.

Where a deceased died domiciled outside jurisdiction, the Registrar may order that a grant be issued to-

(a) A person entrusted with the administration of the estate by the Court having jurisdiction at the place where the deceased died;

(b) A person entitled to administer the estate by the law of the place where the deceased died domiciled;

(c) Any other person as the Registrar may direct where paragraphs (a) and (b) do not apply;

(d) Any other person jointly with a person referred to in paragraphs (a) and (b), or at least two administrators where the Registrar directs, Provided that without any order as aforesaid,

(i) Probate or any Will which is admissible to proof may be granted where

(a) The Will is in English or in the local vernacular, to the executor named therein;

(b) The Will describes the duties of named person in terms sufficient to constitute him an executor according to the tenor of the Will;

(ii) Where the whole of the estate in the jurisdiction, consists of immovable property, a grant limited to it may be made in accordance with law applicable in the Kaduna State.

(1) Where a person entitled to a grant resides outside jurisdiction, a grant may be made to his lawfully constituted attorney for his use and benefit, though the attorney may be resident outside jurisdiction.

(2) Where a Registrar is satisfied by an affidavit that it is desirable for a grant to be made to the lawfully constituted attorney of a person entitled to a grant and resident within jurisdiction, he may direct that a grant be made to the attorney for the use and benefit of that person, though limited, until that person obtains a grant.

(1) Subject to sub-rule (3) of this Rule, a grant to a minor before the attainment of the age of 18, shall be issued to

(a) One or both parents of the infant jointly or to any guardian appointed by a Court of competent jurisdiction; or

(b) If there is no guardian able and willing to act and the infant has attained the age of 16 years, to any next of kin nominated by the infant or where the infant is a married woman, to any such next of kin or to her husband if nominated by her.

(2) A person nominated under sub-rule (1)(b) of this Rule, may represent any other infant whose next of kin he is, being an infant below the age of 16 years entitled in the same degree as the infant who made the nomination.

(3) Administration for the use and benefit of the infant until he attains the age of 18 years may be granted to any person assigned as guardian by order of a Court in default of, or jointly with or to the exclusion of, a person mentioned in sub-rule (1) of this Rule, and such administration may be limited as the Court may direct.

(4) Where a grant is required to be made to not less than 2 persons and there is only one person competent and willing to take a grant under the preceding provisions of this rule, a grant, unless the Registrar directs, may be made to such person jointly with any other person nominated by him as a fit and proper person to take a grant.

(5) Where an infant who is sole executor has no interest in the residuary estate of deceased, administration with the Will attached for the use and benefit of the infant until he attains the age of 18 years shall, unless the Registrar directs, be granted to the person entitled to the residuary estate.

(1) Where a Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs, a grant for his use and benefit, limited during his incapacity or in such other way as the Registrar may direct, may be made

(a) In the case of mental incapacity, to the person authorized by the Court to apply for the grant; or

(b) Where no person is authorized or in the case of physical incapacity, if the person incapable is entitled

(i) As executor and has no interest in the residuary estate of the deceased, to the person entitled to such residuary estate;

(ii) As executor and has an interest in the residuary estate of the deceased, to the person entitled to such residuary estate.

(2) Except the Registrar directs, no grant shall be made under this rule unless all persons entitled in the same extent as the person incapable have been cleared off.

(3) In the case of mental incapacity, notice of intended application for a grant under this rule shall, except the Registrar directs, be given to the person alleged to be so incapable.

(1) The Registrar shall not require a guarantee as a condition of making a grant except where it is proposed to make it –

(a) To a creditor or the personal representative of a creditor or to a person who has no immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;

(b) To a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate, be entitled to his estate;

(c) To the attorney of a person entitled to a grant;

(d) For the use and benefit of a minor;

(e) For the use and benefit of person who is by reason of mental or physical incapacity incapable of managing his affairs;

(f) To an applicant who appears to the Registrar to be resident elsewhere than in Kaduna State; or

(g) where the Registrar considers that there are special circumstances making it desirable to require a guarantee.

(2) Despite a proposal to make a grant as above, a guarantee shall not be required, except in special circumstances, on an application for administration where the applicant or one of the applicants is the Administrator-General or a trust corporation.

(3) Every guarantee entered into by a surety for the purposes of this Order, shall be as in Probate Form 57, as in the Appendix.

(4) Except where the surety is a corporation, the signature of the surety on every such guarantee shall be attested by an authorized officer, commissioner for oaths or other person authorized by law to administer an oath.

(5) Except the Registrar directs

(a) If it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed N500,000.00 or a corporation is a proposed surety and, in these cases, one will suffice;

(b) No person shall be accepted as a surety unless he is resident in Kaduna State;

(c) No officer of the judiciary shall become a surety unless the officer has a personal affinity with the estate of the deceased;

(d) The limit of the liability of the surety or sureties under a guarantee shall be the gross amount of the estate as sworn on the application for the grant;

(e) Every surety, other than a corporation, shall justify.

(1) Upon application made to the Registrar, a grant of probate or letters of administration may be re-issued, in all particulars retaining its initial details except to the extent the Registrar may vary the grant in any of the following circumstances:

(a) there was error or disparity or omission in the name or the names of the deceased or of the grantees and it has become necessary to correct or reconcile same;

(b) there was error in the date of death or place of death of the deceased;

(c) there was more than one grantee, and a grantee has died and require to be replaced;

(d) a grantee was appointed in that capacity as guardian to a minor who has now attained majority and needs to replace the earlier grantee;

(e) a grantee has become unfit to continue as an administrator due to mental or physical incapacity, bankruptcy, conviction for dishonesty etc., or other circumstances has arisen that makes his continuation as an administrator inappropriate, provided that necessary proof of such incapacity or circumstance must be provided;

(f) there was error in the description of any item in the inventory of properties and it has become necessary to correct same.

(2) Where an application for rectification and reissue of grant pertains to errors concerning the names of grantees, the replacement of grantees, the description of properties and such other circumstances as the Probate Registrar may consider vital:

(a) an application for reissuance of a grant shall be treated as if it were a new application for a grant of probate or letters of administration to which all the prescribed requirements will apply and the application shall be additionally accompanied with the original copy of the grant sought to be rectified and reissued, provided that where the error occasioning a rectification is due to the fault of the probate registry, the requirement of publication shall not apply.

(b) where a grantee is sought to be replaced, the consent of such grantee must accompany the application, unless the circumstances are such that it was impossible for him or his conduct has made him not deserving to give such consent.

(3) It is in the absolute discretion of the Registrar to revoke a grant rather than approve and permit a rectification of a grant for re-issue where he consider that the circumstances are such that revocation will better preserve the estate and the integrity of the powers of the Registrar.

(4) Where a rectification is approved for re-issue of a grant, the original copy of the now rectified grant must be surrendered to the Registrar and where the original is claimed to be lost, the applicant shall produce a copy accompanied with a police report of the circumstances of the loss.

Where evidence as to the law of a country or territory outside Kaduna State, is required on an application for a grant, the Registrar may accept an affidavit from a person whom, having regard to the particulars of his knowledge or experience given in the affidavit, he regards as suitably qualified to give expert evidence of the law in question.