Select Page


Probate is the proving of a
Will to the satisfaction of the court; it is a judicial procedure by which a
testamentary document is established to be a valid will.[2]

Probate is a term commonly
used when the subject matter is an application for the right to deal with the
affairs of someone who has died. However, different terms are used, depending
on whether the deceased person left a will or not.

If the deceased had a Will,
the executor or administrator will apply for a grant of probate. The grant is a
legal document which confirms that the executor has the authority to deal with
the deceased person’s assets (shares, property, whether real or personal and
money as well). This is called ‘administering the estate’. The executor uses
the grant to show they have the right to access funds, sort out finances, realize
and distribute the deceased person’s assets as set out in the Will.

However, if the deceased
died intestate, a close relative of the deceased, in the order of priority,[3] can apply to the probate registry to
deal with the estate. Under these circumstances, an application for letters of
administration will be made to the probate registry. Like the grant of probate,
the letters of administration is a legal document which confirms the
administrator’s authority to deal with the deceased person’s assets.

Probate practice deals with
the procedure of administration of the estate of the deceased after death. It
also refers to the procedure for grant of probate and letters of administration
in both contentious and non-contentious cases.

What does the Future
hold?

The potentials of an
efficient probate practice system in developing the Nigerian economy cannot be
overestimated. Apart from its huge fiscal prospects, the high mortality rate
automatically calls for caution and serious improvements. With the demography
increasing by over 40 million people in less than a decade, the demand for an
improved probate practice system is at least, an increasing national emergency.

The following issues will be
addressed under this topic:

1.     
Digitalised archives for storage of
Wills

Under the Lagos State
jurisdiction, the electronic filing system has commenced, however, a glance at
the shelves of the Probate registry reveals the endless piles of files.

The crude and manual storage
of files and probate data is not only a measure of the poor and sluggish pace
of service delivery at the registry but also an indication of how inefficient
the justice system has become. In a fire outbreak or other natural disasters,
files and records could perish irretrievably. The conversion to electronic
copies of files has commenced at the Lagos State Probate Registry and it is
time for this to be duplicated nationwide.

2.     
Classification of personal chattels

Personal chattels are any
movable tangible property which form a part of the possession of a deceased
person. Usually, there is a tax payable to the Government in the assessment of
personal chattels. In Lagos State, it is assessed at 5 percent of the value of
the Estate which comprises money, shares and real assets. However, the
Government often overlooks the fact that personal chattels can be worth more
than 5 percent. Some individuals are known to invest their assets in the form
of gold and other precious stones. Lately, the local elite have taken an
interest in investing in artwork. These can be valued and assessed as forming a
part of the estate, rather than subsuming it all under “personal chattels”.

3.     
Uncertainty about the cost of processing
of letters of administration and grant of probate and issues with the
calculation of probate fee on real property

In the United Kingdom, once
the value of an estate is ascertained, an applicant can easily calculate the
requisite probate/inheritance tax payable on the Estate using the form provided
by the HM Revenue and Customs.[4] This is not the case in Nigeria
where an applicant has to be issued a probate fee sheet after a declaration of
all the assets and an inspection of real assets by the valuation department of
the probate registry to ascertain the value of the real assets declared. This
not only contributes to delays but also further clouds the transparency of the
process. We hope that sometime soon, by the deployment of modern technologies
and the use of GPS systems, fees payable on properties declared can be promptly
and easily ascertained.

4.     
Probate Rules

The Probate Registrar or
someone closer to the administration of probate should be given the power to
make Rules of practice and procedure in the probate registry. In the United
Kingdom,[5] the President of the Family
Division, with the concurrence of the Lord Chancellor, is given power to make
rules of court (known as Probate Rules), for regulating and prescribing the
Practice and Procedure of the High Court with respect to non-contentious
Probate. These rules are known as the Non-Contentious Probate Rules 1987
(amended by the Non-Contentious Probate Rules of 1987). However, in Nigeria,
most Rules of Court are reviewed by the Chief Justice of the High Court of the
respective State. Sometimes, it takes an average of 5 to 10 years for these
reviews to happen. If someone closer to the administration of Probate, such as
the Head of Probate or the Probate Registrar, is delegated to review Probate
Rules, then, it will make the Rules more subject to regular reviews and keeps
the system fresh and updated.

5.     
An improved service delivery system

Service delivery at the
Registry has improved drastically in the last one year. More information is
being circulated to solicitors and applicants. This was not the situation
before now and it encourages solicitors and applicants to go about their
business at the registry.

There is also a stricter
requirement in the documentation to be presented for the processing of grant of
probate/letters of administration such as the sighting of the original death
certificate. The effect of this requirement is the prevention of probate
applications being triggered by the wrong parties as was the situation in the
past.

6.     
Review of the maximum limit for small
estates

There is an existing
Administration of Estates (Small Estates Payments Exemption) Law of Lagos State
2005[6] that excludes estates worth
N100,000.00 and below from undergoing the publication process and payment of
probate fees. These estates are usually assessed at a flat rate of N500.00 for
the issuance of the letters of administration or a grant of probate. It has
been recommended that the limit of N100,000.00 be increased to a limit of
between N1,500,000.00 to N2,000,000.00 to encourage the processing of more
applications for letters of administration/grant of probate at the registry in
a speedy and cost-effective manner. There should also be a situation where
letters of administration or grant of probate will not be required by financial
institutions to access deceased persons’ funds and shares where it is below a
certain threshold. Financial institutions must be empowered to carry out their
due diligence in ensuring that the funds and other liquid assets are being
released to the proper beneficiaries of the deceased person.

CONCLUSION

With the advent of the
Covid-19 pandemic, the Probate Registries of the affected States have been shut
down. The effect of this is that the potential income viability of State
Governments have been affected, without going into the resultant effects of the
delays that will affect applications for grant of probate and letters of
administration.

It is now obvious that a lot
of attention has to be paid to the management and administration of probate
practice and procedure, possibly as a separate entity or as an independent arm
of the High Court with a modern and technologically supported approach for it
to retain the capacity to provide equal access to justice for the general
public. The advantages of these
proposed changes are that they will ultimately transition the current system
into an improved system which will provide faster service delivery for
applicants and ultimately, more revenue for the government.

 

___________________________________________________________________

For further information on
this article and area of law, please contact Adetola Ayanru at:

234.                    
P. A. Ajibade & Co., Lagos by telephone
(+234.1.460.5091, 460.5092),

Mobile (+234.908.155.0677;
+234.807.819.1720) or

Email (aayanru@spaajibade.com)

www.spaajibade.com

[1]     Adetola
Ayanru, Senior Associate, S. P. A. Ajibade & Co., Lagos, Nigeria.

[2]    
Ariwoola, JSC in Nsefik v. Muna (2014) AFWLR PART 718 p. 865.

[3]    
Section 49e, Administration of Estates Law, CAP A3, Laws of Lagos State, 2004.

[4]    
https://www.gov.uk/government/publications/inheritance-tax-inheritance-tax-account-iht400.

[5]    
By Section 127 of the Supreme Court Act 1981.

[6]    
A Law to provide for the grant of certificates to small estates, exempt such
from payment of estate duty and grant of full letters of administration and for
connected purposes.

 Source: www.spaajibade.com