HOW TO RECOVER PROPERTY OF THE DEAD IN NIGERIA. (A legal guide on Probate Matters in Nigeria)

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A.   WHERE THERE IS A VALID “WILL”.

We all live to leave great memories and inheritance for our dependants. We somehow control what happens in our lives and not afterwards. One dies either “testate” (with a valid will) or intestate (without a valid will). A WILL is a record of the intentions of a deceased made by himself before his death effective from his death. It is the wishes/ intentions of a person that will guide the management and administration of his affairs and property after his death.Once there is a WILL the property of a deceased MUST be executed(shared) among the beneficiaries (people mentioned in the WILL to inherit property) as the WILL says. No man, court, government, lawyer, soldier, police officer, clergy, chief, thief, elders or native custom can change or go contrary to the contents of a valid WILL. It is the last intention of a dead person and MUST be obeyed by all living things!

Note that my adjective “VALID” refers to acquistion of qualities that qualifies a WILL to be respected and honoured. Any thing written by a dead person can be his WILL if only such thing contains certain features/qualities that make a VALID WILL. Some of the features/qualities of a VALID WILL are; a VALID WILL must be made by a SANE PERSON (not by a mentally sick, imbalance, incoherent person),VOLUNTARILY (intentionally, freely, willingly, wilfully, without force, fear, intimidation, enticement, pressure, deceit, forgery, fraud and mistake), signed by the maker in the presence of at least TWO WITNESSES (who need not know the content of the WILL) before the death of such a person. Where any of the above qualities/feature is missing such a WILL is not VALID in the eyes of law. Such WILL can be challenged by any interested party before a law court; for such a WILL to be declared invalid and the dead person be treated as a one who died without a WILL. A Valid WILL will also become INVALID where the maker marries or divorces a spouse after making a VALID WILL or makes another VALID WILL, or destroys, alters, cancels, inserts or defaces his VALID WILL. Under the WILLS Law of Lagos State, any WILL that did not make reasonable financial  provision for a Wife/Husband and children can be challenged in court and may be declared INVALID (See, Section 2, WILLS LAW LAGOS STATE Cap. W2 Laws of Lagos State, 2004). Same is applicable in Abia, Oyo and Kaduna States although in such states the list even includes parents and siblings of the deceased (See, Section 4 ABIA STATE WILLS LAW Cap 37, Laws of AbiaState 1999).  A WILL made by an under aged person is not VALID. Under the WILLS ACT the legal age for making of WILL is 21 years, although in Lagos, Kaduna, Abia and OYO states among other few states the age is 18 years old. But there is no age limitation/restriction for army officers and civilian mariners, seamen and air crew in action.

After the death of a person who had written and left a WILL, such a WILL is expected to be found among his belongings or where such a WILL  had been kept by his lawyer, the lawyer must inform the family of the existence of the WILL or where no WILL is found the family may visit Probate Departments of any of the State High Courts to inquire and carryout a search for a WILL of a deceased. Where the WILL of a deceased is found by any means, the family is expected to be given a date for the unsealing of the WILL. On an agreed day, a sealed WILL will be shown to all present and same will be opened and its content read out before the people present in a court room or in the lawyer’s office or even in the deceased’s residence.

Often times, makers of WILL appoint legal representatives (executors); being persons that will manage and administer the estate (properties) until such property is given/assented to the beneficiaries of the WILL. Legal representatives carry out the wishes of a dead person as stated in his WILL in trust for the beneficiaries. Where a person has been appointed as an executor, such an executor is expected to apply to a State High Court for a Grant of Probate (Letter Of Execution). Probate is the authority from a State High Court that validates the powers and functions of an executor even though such executor was appointed by a WILL. Executors can be of any number; there is no limit. That someone was mentioned in a WILL as an executor does not give such a person a right to start managing the deceased’s property without a grant of Probate by a State High Court except in exceptional situations in the interest of the estate.  Steps towards obtaining a grant of Probate cannot be initiated until 7 days after death of a deceased. The procedure for obtaining a grant of probate where a WILL is disputed (contentious) is different from that where a WILL is undisputed (Non contentious); both will be discussed below.

 

STEP BY STEP GUIDE ON OBTAINING A “PROBATE”.

A WILL may be disputed or undisputed, Non-contentious, common OR disputed, contentious, solemn. A WILL is said to be disputed, contentious and solemn when the people concerned in the WILL are contesting the validity of the entire WILL or parts of it. It may be their claim that a WILL was not signed by the purported maker, or was signed by the purported maker under fear, duress, insanity or without witnesses etc.  Often times, an interested person writes and sends a “CAVEAT” (in this context, it is a written notice given to a court or Judge warning it not to admit, hear and accept a particular WILL). Hence, instead of executing such WILL, court will first consider such caveat, contest and verify the protests therein.  After a careful evaluation and assessment of evidence, court may hold the WILL as valid or invalid. Where a WILL is held by court as VALID, the executors and beneficiaries will go on to obtain grant of probate. Where court holds that a WILL is invalid, such a WILL can never be used by any person. The property/estate of the deceased will be treated as if there was no WILL at all (deceased died intestate).

 

1.       SEARCH AND REQUEST FOR “WILL”

Where there is a WILL in custody of a deceased’s lawyer, such a lawyer has a duty to intimate the family of the deceased, fix a date, time and venue to unseal and read out such WILL.Where WILL is in the custody of the Probate Department, of a State High Court, the lawyer is expected to write to the Probate Department, announcing the death of the deceased  and seeking a date, time and venue for the deceased’s WILL to be read out. Death certificate of the deceased must be attached to the letter. It is advised that lawyers register and safekeep WILLs in Probate Departments/Registeries during the life time of their clients instead of keeping same themselves. Please note that where a person dies in a hospital doctors issue death certificate but a death certificate for any kind of death at any place can be obtained from the National Population Commission (NPC). NPC has desks and staff in major hospitals across the nation. Read my wok on “HOW TO OBTAIN BIRTH AND DEATH CERTIFICATES IN NIGEIRA”. 

2.       PRESENTATION, UNSEALING AND READING OF “WILL”

In an open court by a Probate Registrar or in a law chamber by a lawyer on an agreed date and time, a deceased’s WILL may be presented to all persons present to confirm that such WILL is still sealed before it is unsealed, opened and read out to all. WILL will state property (assets and liabilities) given out, people to receive such property, terms and conditions for receipt such property, if any and people to manage same among other instructions.

In some cases, a lawyer present, unseal and read out WILL in deceased’s house; I detest such practise. It is unprofessional and exposes such a lawyer to an unimaginable occupational hazard. 

3.       APPLICATION FOR GRANT OF PROBATE.

Firstly, “Probate” is a letter of authority given by a court of law to person(s) mentioned in a WILL to manage property of a WILL-maker(deceased) for themselves and or for others. No person whose name is mentioned in a WILL as an executor (managers of the property of a deceased) or a beneficiary (recipients of property in a WILL) can manage or receive such a property from a WILL without applying and receiving a grant of “Probate” from a law court. 

Persons named in a WILL as “Executors” are expected to obtain a grant of probate, by making a written application for probate attached with copies of “WILL”, “death certificate of the deceased”, “Declaration on oath byexecutors”, “Oath/justification by sureties of the executors”, “completed bond by the executor(s) to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)” and passport photographs of the executors.  Where there is a WILL but no executor was appointed by the maker in the WILL, court will appoint executors; often times court will appoint the beneficiaries as executors to the WILL.

4.       GRANT OF PROBATE

Where the executors have complied with the above requirements, a Probate Registrar will grant probate to the applicants. With the PROBATE, the executors can then administer, manage,share, sell, lease, use, sue and be sued the property of the deceased as if they were the deceased himself; because they have stepped into his shoes. Where executors are different from beneficiaries, such executors upon obtaining a grant of probate are equally empowered to share, devolve, vest, transmit and transfer the property of the deceased to his beneficiaries according to the deceased’s WILL. Please note that, on issues of land in Lagos State and most states of the former Western Region of Nigeria, executors can only transfer/vest ownership of land of a deceased to his beneficiaries through a “DEED OF ASSENT”.

Any one that tampers with property of a deceased person without a “Probate” or a “letter of administration” can be sued both in criminal and civil laws.

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