PROBATE What is Probate Probate has to do

PROBATE

What is Probate? Probate has to do with the procedure of administration of the estate of the deceased after his death. The duty of carrying out such administration falls upon the personal representatives of the deceased. When a will is made, it is usual to nominate some persons to act as personal representatives of the deceased. Such persons being called Executor’s under a will or Administrator’s where there is no will.

Why Probate? • Probate must be obtained before the executor can do any act which requires proof of his authority to act. Before Probate is granted an executor can neither enforce a right nor obtain possession of property by means of a legal action.

• The executor can deal with the estate of the deceased before he obtains probate because according to the Probate Rules 1862 “No probate of will can be granted until after the lapse of seven days from the death except with the leave of two (2) registrars where there are urgent matters to be attended to.

Who is an Executor? • Only an executor named in the will/ provided for by it is entitled to obtain probate of a will. An executor must be appointed by the will or codicil thereto either expressly or by implication. An express appointment is made where the testator in the will either names his executor.

Method of Appointing Executors • Express Appointment • Appointment by Implication • Appointment by operation of the law.

Qualities of an Executor • • Willingness and availability to act; Capacity; No conflict of interest Harmony; Credibility and honesty; Knowledge and business of testator; Logistics and convenience; and Age.

Who May Act As Executors? • Adult • Trust corporations

Refusal of Office • It is provided in Section 6 Administration of Estates Law that an executor will lose his right to apply for probate if he dies before obtaining probate and if he does not appear when cited to take out probate by some person interested.

• Death of an Executor • Probate of a Foreign Will • Probate Registries

Probate in Common Form • A grant of probate obtained from a registry without application to the court is termed; “Probate in Common Form”. It cannot be obtained until seven (7) days have expired from the death of the deceased. The executor must apply either in person or by a solicitor. Application must not be made by letter, he must apply in person. An accountant has no power to apply on behalf of his client. • The procedure is simple and all that is required is the production of the necessary documents and the payment of fees, stamps and capital transfer. Probate in common form can be questioned and if necessary, revoked by a petition calling upon the executor to prove in solemn form presented within 30 years of the first grant of probate.

Double Probate • A grant of double probate can be made when the testator has provided in his will for substituting executor on the death of the several appointed executors. If a will appoints more than four executors, only four can receive a grant. Section 24 Administration of Estates Law; but when a vacancy occurs, a further executor can apply for a grant of double probate. Section 34 Administration of Estates Law makes provision in this respect. • The application must be made to the same registry as the original grant.

Opposition of Probate • Caveat (Section 21 Administration of Estates law) • Upon notification of the caveat, the executor must submit to the registry the following: a. The executors oath; b. Inland Revenue Affidavit and Estate Account; c. The actual will; d. Where the executor is a trust corporation. (Section 25 Administration of Estates law), A certified copy of the resolution of the board appointing an officer of the corporation to act.

Probate in Solemn Form To prove a will in solemn form, an action must be commenced in the high court by means of a writ. All persons who may be interested in the invalidity of the will being called upon to show cause if any why probate should not be granted.

Grounds for Obtaining Probate • That the will is invalid by reason of improper execution e. g. no witness or forgery. • Lack of testamentary capacity in the testator. • Lack of animus testandi in the testator through fraud, duress or undue influence. • Revocation by the testator.

Revocation of a Grant of Probate • When the executor after obtaining probate in common form is called to prove the will in solemn form and he fails to do so; • Where a latter will is discovered; • Where probate is obtained by fraud; • Where probate has been granted to the wrong person; and • Where the executor becomes incapable of acting for example by reason of insanity or infirmity.