UNIT 12

PROBATE PRACTICE

Probate practice in Nigerian property law involves the legal process through which a deceased person’s estate is administered, ensuring that their assets are distributed according to their will or, if there is no will, according to the laws of intestacy. This process is governed by various statutes and judicial precedents, which guide the appointment of executors, the validation of wills, and the distribution of estate assets.
Probate refers to the judicial process of proving and registering the validity of a will. It also involves the administration of the deceased’s estate, including the payment of debts and distribution of assets. See the wills act which governs the creation, validity, and administration of wills in Nigeria. It stipulates the requirements for a will to be valid, including the capacity of the testator and the formalities to be followed and the administration of estates law (CAP A1, LFN 2004) which provides the framework for the administration of estates where a person dies intestate, that is, without a will. It outlines the appointment of administrators and the distribution of the estate according to the laws of intestacy.

VALIDITY OF WILLS

See the case of Ajao V. Olubunmi (1974) 3 SC 145 where the supreme court held that a will must be executed in accordance with the statutory requirements to be valid. The case emphasized the importance of following the formalities set out in the wills act and the case of Ogundipe V. Adebanjo (2004) 1 NWLR (Pt. 855) 149 where the court addressed the issue of testamentary capacity and the requirement for witnesses. The court reiterated that failure to adhere to the formal requirements invalidates the will. For a will to be valid in Nigeria, it must comply with certain statutory requirements under the wills act which includes the following:

1. Capacity: The testator must be of sound mind and at least 18 years old.
2. Formalities: The will must be in writing, signed by the testator, and witnessed by two or more persons who are present at the same time. Witnesses must also sign the will.
3. Revocation: A will can be revoked by a subsequent will or codicil which is a supplement to a will, or by physical destruction of the will.

APPOINTMENT OF EXECUTORS AND ADMINISTRATORS

The executor of a will is responsible for administering the estate according to the deceased’s wishes. If there is no will, the court appoints an administrator to manage the estate.

1. Executors: See the case of Ogundele V. Olubode (2001) 5 NWLR (Pt. 707) 371 where the court discussed the role of executors and the requirements for their appointment, emphasizing that executors must act in the best interests of the estate. Executors are named in the will and are responsible for the following:
   
   1. Probating the will: Presenting the will for probate and ensuring its validity.
   2. Settling debts: Paying the deceased’s debts and taxes.
   3. Distribution: Distributing the estate’s assets to the beneficiaries.
2. Administrators: When there is no will, administrators are appointed according to the laws of intestacy. See the case of Atta V. Aliyu (2010) 5 NWLR (Pt. 1186) 207 where the court highlighted the duties of administrators under the administration of estates law, stressing the need for transparency and proper accounting. Their duties includes the following:
   
   1. Inventory and valuation: Taking stock of the deceased’s assets and liabilities.
   2. Payment of debts: Settling the deceased’s debts and taxes.
   3. Distribution: Distributing the remaining assets according to the law.

PROBATE PROCEDURE

The probate procedure involves several steps which includes the following:

1. Application for grant of probate: The process begins with applying to the high court for a grant of probate or letters of administration. This application includes the will, if any, a list of assets, and a death certificate. See the case of Maikano V. Maikano (2005) 4 NWLR (Pt. 915) 165 where the court dealt with the procedure for applying for a grant of probate and the requirements for a valid application. The court emphasized the need for proper documentation and adherence to procedural requirements.
2. Issuance of grant: Once the court is satisfied with the validity of the will or the intestacy, it issues a grant of probate or letters of administration. This grant authorizes the executor or administrator to manage the estate.
3. Administration of the estate: The executor or administrator must collect and manage the estate’s assets, pay off debts, and distribute the remaining assets according to the will or the intestacy laws. See the case of Balogun V. Olukole (2011) 7 NWLR (Pt. 1246) 325 where the court examined the responsibilities of executors and administrators in the probate process, highlighting the need for transparency and proper management of the estate.
4. Final accounting: A final account of the estate’s administration must be prepared and submitted to the court, detailing the distribution of assets and settlement of debts.

CONCLUSION

Probate practice in Nigeria is a critical aspect of property law, ensuring that a deceased person’s estate is managed and distributed according to legal and testamentary requirements. Understanding the statutory framework and judicial precedents is essential for effective practice in this area. Executors and administrators must adhere to the procedural requirements and statutory obligations to ensure proper administration of the estate.