Order 61 — Grant of Letters of Administration (with Will Attached)

Unless hereinafter specifically provided, the procedure prescribed for grant of letter of administration without Will in Order 60 shall apply to this order with such modifications as the circumstances may require.

(1) Where a person dies, the person(s) entitled to a grant of letters of administration with the Will annexed shall be determined in the following order of priority

(a) The executor;

(b) Any residuary legatee or devisee holding in trust for and other persons;

(c) A residuary legatee or devisee for life;

(d) A residuary legatee or devisee whose legacy is vested in interest;

(e) The ultimate residuary legatee or devisee, including one entitled on the happening of contingency or, where the residue is not wholly disposed of by the Will:

(i) A person entitled to share in the residue not disposed of by Will, or his personal representative;

(ii) A legatee or devisee entitled to a share in the estate disposed of;

(f) Any specific legatee or devisee or any creditor or, 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;

(g) A specific legatee or devisee entitled on the happening of a contingency, or a person having no interest under the Will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.

(2) Where the residue is not in terms wholly disposed of, the Registrar may, if satisfied that the testator has disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made 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 a residue not disposed of by the Will.

(1) On receipt of an application for letters of administration with Will annexed, the Probate Registrar shall inspect the Will and see whether it appears to be signed by the testator or by some other person in his presence and by his direction, and subscribed by two witnesses according to the relevant provisions of the law and shall not proceed further if the Will does not appear to be so signed and subscribed.

(1) Where there is no proving executor, an application to join with a person entitled to a grant of administration with the Will attached-

(a) another person in a lower degree in default of renunciation by all persons entitled in priority to him; or

(b) another person having no right to the grant,

may be made to the Registrar, supported by an affidavit of a person entitled, the consent of the person proposed to be joined as personal representative and such other evidence as the Registrar may require.

(2) The following may, without an application, be joined with a person entitled to administration with the Will attached-

(a) Any kin of the deceased having no beneficial interest in the estate, on the renunciation of all persons entitled to join in the grant;

(b) Unless the Probate Registrar directs, a person nominated for that purpose, by the infant’s guardian;

(c) A trust corporation.

(1) An application to add a personal representative shall be made to the Registrar and shall be supported by an affidavit by the applicant, with the consent of the person proposed to be added as personal representative and such other evidence as the Registrar may require.

(2) On an application, the Probate Registrar may direct that, a note shall be made on the original of the addition of a further personal representative, or he may impound or revoke the grant or make an order as the circumstances require.

Where the beneficial interest in the whole estate of deceased is vested absolutely in one person who has renounced his right to a grant of administration with the Will attached and has consented to such administration being granted to a person(s) who would be entitled to his estate if he himself had died intestate, administration may be granted to such person or more (not exceeding four) of as a person in whom the estate has vested absolutely, unless he would be entitled to the whole of the estate, whatever its value may be.

(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) Except the Registrar directs, no person who has renounced a grant in one capacity may obtain a grant in some other capacity.

(3) A renunciation of probate or administration may be retracted at any time on the order of the Registrar, but only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree.

(1) A person may, in his lifetime, deposit for safe custody in the Probate Registry his own Will, under his own seal and that of the Court.

(2) The person depositing the Will shall furnish the Registrar with names/addresses of not less than two persons who shall be notified for the opening of the Will.

(3) On receipt of an application to deposit a Will, the Registrar shall inspect the Will and see whether it appears to have been signed by the testator or by some other person in his presence and by his direction, and subscribed by two witnesses according to the provisions of the law, and shall not proceed further if the Will does not appear to be so signed and subscribed.

(4) Where a Will appears to be signed and subscribed, the Registrar shall then refer to the attestation clause (if any) and consider whether the wording state the Will to have been, in fact, executed in accordance with those provisions.

(1) Where a Will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the Will, the Registrar 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 an affidavit cannot be obtained in accordance with sub-rule (1) of this Rule, the Registrar may, if he deems fit having regard to the desirability of protecting the interest of a person who may be affected by the Will, accept evidence on affidavit from any person he thinks fit to show that the signature on the Will is the handwriting of the deceased or of any other matter which may raise a presumption in favour of the due execution of a Will.

(3) Where the Registrar, after considering evidence is

(a) satisfied that the Will was not duly executed, he shall refuse probate and shall mark the Will accordingly;

(b) doubtful whether the Will was duly executed, he may refer the matter to the court on motion.

Before admitting to proof, a Will which appears to have been signed by a blind or illiterate testator or by another person by direction of a testator, or which for any reason gives rise to doubts as to the testator having had knowledge of the contents of the Will at the time of its execution, the Registrar shall satisfy himself 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 there appears in a Will any 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 Registrar shall require evidence to show whether the alteration was present at the time the Will was executed and shall give directions as to the form in which the Will is to be proved, but this subrule shall not apply to an alteration which appears to the Registrar to be of no practical importance.

(2) Where from a mark on a Will, it appears to the Registrar that some other document has been attached to the Will or if a Will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the Will, the Registrar may require the document to be produced and call for evidence regarding the attachment(s) or incorporation.

(3) Where there is doubt as to the date on which a Will was executed, a Registrar may require such evidence as he thinks necessary to establish the date.

Any appearance of attempted revocation of a Will by burning, tearing or other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the Registrar’s satisfaction.

The Registrar may require an affidavit from a person he thinks fit for purposes of satisfying himself as to any of the matters referred to in rules 16, 17, 18 and 19, and where an affidavit is sworn to, by an attesting witness or other person present at the time of the execution of a Will, the deponent shall depose to the manner in which the Will was executed.

Where it appears to the Registrar that there is prima facie evidence that a Will is one to which section 9 of the Wills Law of Kaduna State or an equivalent enactment in force in the State applies, the Will may be admitted to proof if the Registrar is satisfied that it was made by the testator in accordance with the provisions of that enactment.

After a Will has been deposited in the registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Registrar so direct.

(1) An original Will shall not be delivered out for any purpose without the direction in writing of the Court where the Will is filed.

(2) A certified transcript, under the seal of Court, of the probate or administration with the Will annexed may be obtained from the Court.

(1) An application for an order admitting to proof a codicil or a Will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original Will is not available, may be made to the Registrar, but where a Will is not available owing to its being retained in the custody of a foreign Court or official, a duly authenticated copy of the Will may be admitted to proof without an Order.

(2) The application in sub rule (1) shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to

(a) The due execution of the Will;

(b) Its existence after the death of the testator; and

(c) The accuracy of the copy or other evidence of the contents of the Will, together with any contents in writing to the application given by any person not under disability who would be affected by the grant.

(1) Upon the death of a testator, any person with a connection to the deceased may request for the opening of the Will by an application to the Registrar supported with a death certificate.

(2) The Registrar shall notify the persons listed in Rule 1(2) above and family members to the opening of the Will on a date fixed for the opening.

(3) On the date fixed for the opening, all parties listed shall be seated and the Registrar shall open and read the Will and thereafter issue to each person a certified true copy of the Will upon payment of a prescribed fee.

(4) Where any property is not mentioned in the Will of deceased, the proven Executors shall apply for Letters of Administration in respect of the said property and such application shall be accompanied by the Probate.

Where a person dies, the person(s) entitled to a grant of probate shall be determined in the following order of priority

(a) The executor;

(b) Any residuary legatee or devisee holding in trust for any other persons;

(c) A residuary legatee or devisee for life;

(d) A residuary legatee or devisee whose legacy is vested in interest;

(e) The ultimate residuary legatee or devisee, including one entitled on the happening of a contingency or, where the residue is not wholly disposed of by the Will,

(i) A person entitled to share in the residue not disposed of by Will, or his personal representative;

(ii) A legatee or devisee entitled to a share in the estate disposed of;

(f) A specific legatee or devisee or creditor, a 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 in it, may have a beneficial interest in the event of an accretion to it;

(g) A specific legatee or devisee entitled on the happening of a contingency, or a person having no interest under the Will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.

(2) Where the residue is not in terms wholly disposed of, the Registrar may, if satisfied that the testator has disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made 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 a residue not disposed of by the Will.

On receipt of an application for grant of probate, the Registrar shall grant probate to the executor(s) or such other persons in accordance with these Rules.

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

(2) Where there are two or more assignees, probate may be granted with the consent of the others to any one or more (not exceeding four) of them.

(3) Where probate is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Registry.

(1) Where one of two or more executors is an infant, probate may be granted to the other executor or executors not under disability, with power reserved for making a similar grant to the infant on his attaining the age of 18 years and administration for the use and benefit of the infant until he attains the age of eighteen years may be granted under Rule 31, if the executors who are not under disability renounce or on being cited to accept or refuse a grant, fail to make an effective application accordingly.

(2) An infant executor’s right to probate on attaining the age of eighteen years may not be renounced by any person on his behalf.

(1) An original Will, of which probate or letter of administration with Will annexed is granted, shall be filed and kept in the Registry, in such manner as to secure the due preservation and convenient inspection of it.

(2) A copy of every such Will and of the probate or letter of administration shall be preserved in a book kept for the purpose in the Registry.

(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 summons, which shall be served on such person.

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

(1) Where copies are required of original Wills or other documents deposited under the provisions of a written law, such copies may be under the seal of the Registry and issued as office copies and where such office copies are not available, copies certified under the hand of the Registrar to be true copies, shall be issued only if it is required that the seal of the Court be affixed to it.

(2) Copies, not being photocopies of original Wills or other documents deposited, shall be examined against the documents of which they purport to be copies, if required by the person demanding the copy and in such case the copy shall be certified under the hand of the Registrar to be a true copy and may, in addition, be under seal of the Court.

(1) A person having in his possession or under his control a paper or writing of a deceased, being or purporting to be testamentary, shall promptly deliver its original to the Registrar.

(2) Where a person fails to deliver any paper or writing of any deceased person within 14 days after having knowledge of the death of the deceased, he shall be liable to a fine of not less than N50,000.00.

A will in which application for grant is made shall be marked by the signatures of the applicant and the person before whom the oath is sworn and shall be exhibited to an affidavit which may be required under this Order, as to the validity, terms, condition or date of execution of the Will, but where the Registrar is satisfied that compliance with this Rule might result in the loss of a Will, he may allow a photocopy of it to be marked or exhibited in lieu of original document.

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

(2) Where a Will contains alterations 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) An engrossment lodged under this Rule shall reproduce the punctuation, spacing and division into paragraphs of the Will and, if it is one to which subrule (2) applies, it shall be made bookwise, on durable paper following continuously from page to page.

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

Where a gift to a person fails because he is an attesting witness or the spouse of an attesting witness, that person shall not have a right to a grant as a beneficiary named in the Will, but shall have his right to a grant in any other capacity preserved.