Ms Adetola Ayanru1
The Future of Probate Practice and Procedure in Nigeria
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:
- 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.
- 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".
- 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.
- 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.
- 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.
- Review of the maximum limit for small estates
There is an existing Administration of Estates (Small Estates Payments Exemption) Law of Lagos State 20056 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.
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.
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.
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.
Originally published by S.P.A. Ajibade, April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.