RE-SEALING OF THE PROBATE GRANTED OUTSIDE NIGERIA IN NIGERIA

Probate is the legal authority granted to an executor or executrix of a Will to administer the estate of the testator after the Will has been proved and certified by the Probate Court as the authentic Will of the testator. The judicial due process, which leads to the grant of the legal authority to administer the estate of the deceased, is called “proving the will”.

However, the probate granted by a probate court confers on the executor or executrix the power to administer or deal with only the estate or assets within the jurisdiction of the probate court. It does not cover other assets mentioned in the Will that are outside the territorial jurisdiction of the court.

Therefore, in order to make a probate granted outside Nigeria to be effective or enforceable in Nigeria it has to be re-sealed in Nigeria in the State where the property in Nigeria is located. Likewise, in order to make a probate granted in one state in Nigeria to be effective in another state in Nigeria, it must be re-sealed in the probate registry of that other state. Section 2 of the Probate (Re-Sealing) Act 1966 puts that :

“Where the High Court of a State has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of the deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produce to, and a copy thereof deposited with, the High Court of any other State be re-sealed with the seal of that other court.”

See:High Court (Civil Procedure) Rules of States of Nigeria; Administrator-General v. Airgbadu (1964)MIR 135.

An application for the resealing of Probate or Administration with Will attached granted by a Court outside Lagos State shall be made by the person to whom the grant was made or by any person authorized in writing to apply on his behalf. On any such application:

a. A Tax Clearance Certificate shall be lodged as if the application were one for a grant in the State.

b. The application shall be advertised in such manner as the Judge may direct and shall be supported by an oath sworn by the person making the application.

c. Sureties will be required, where there are special circumstances making it desirable to require sureties.

d. No limited or temporary grant shall be resealed except by leave of the Judge.

e. Every grant lodged for resealing shall include a copy of any Will to which the grant relates or shall be accompanied by a copy certified as correct by or under the authority of the Court by which the grant was made.

f. The Registrar shall send notice of the resealing to the Court which made the grant.

g. Where notice is received in the Registry from outside the State of the resealing of a grant made in the State, notice of any amendment or revocation of the grant shall be sent to the Court by which it was resealed.

It is however, instructive to note that, grants obtained from countries having no reciprocal arrangement with Nigeria such as Commonwealth countries may not be re-sealed in Nigeria.See Section 1 of Probate (Re-sealing) Act which provides that:

Where a court having jurisdiction in matters of probate in a Commonwealth country has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of a State, be re-sealed with the seal of that Court.

Below is the Probates (Re-Sealing) Act of Nigeria

PROBATES (RE-SEALING) ACT

An Act to make provisions for the re-sealing of pro bates and letters of administration issued and sealed in the High Court of a State by the High Court of another State and to make similar provisions relating to Commonwealth countries.

[7th March, 1966]      [Commencement.]

1.      Re-sealing of probates and letters of administration granted in Commonwealth countries

Where a court having jurisdiction in matters of probate in a Commonwealth country has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of a State, be re-sealed with the seal of that Court.

2.      Re-sealing of pro bates and letters of administration granted in a State

Where the High Court of a Stale has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with, the High Court of any other State, be resealed with the seal of that Court.

3.      Conditions to be fulfilled before re-sealing

The High Court of a State shall, before re sealing a probate or letters of administration under this Act, be satisfied-

(a)    that probate duty has been paid in respect of so much, if any, of the estate as is liable to probate duty in that State; and

(b)    in the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in that State to which the letters of administration relate,and may require such evidence, if any, as it thinks fit as to the domicile of the deceased
person.

4.      Duplicate or copy of probate, etc., admissible

For the purposes of this Act, a duplicate of any probate or letters of administration sealed with the seal of the court by which the grant was made, or a copy thereof certified as correct by or under the authority of that court, shall be admissible in the proceedings before the High Court of any State.

5.      Security for payment of debts

The High Court of a State may, if it thinks fit, on the application of any creditor, require, before re-sealing, that adequate security be given for the payment of debts due from the estate to creditors residing in that State.

6.      Effect of re-sealing

A probate or letters of administration re-sealed by the High Court of any State under this Act, shall have the like force and effect and have the same operation in the State in which it is re-sealed as if granted by the High Court of that State.

7.      Rules of court

(1)    The Chief Judge of the High Court of any State may make rules of court for regulating the procedure and practice, including fees and costs, in that Court, of and incidental to an application for the re-sealing of a probate or letters of administration under this Act.

(2)    Subject to any modifications and exceptions made by such rules, the enactments for the time being in force in relation to the payment of fees and probate duty shall apply as if the person who applies for re-sealing under this Act were a person applying for probate or letters of administration in Nigeria.

8.      Interpretation
In this Act-

"Commonwealth country" means a country which is a member of the Commonwealth of Nations;

"State" includes the Federal Capital Territory, Abuja.

9.      Short title

This Act may be cited as the Probates (Re-sealing) Act.

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SUBSIDIARY LEGISLATION

No Subsidiary Legislation

If you reside outside Nigeria and you desire to re-seal the probate of a Will in Nigeria, you may contact Akintunde Esan for further illuminations.

Akintunde Esan, Managing Partner, Ase Olodumare Chambers

RE-SEALING OF THE  PROBATE GRANTED OUTSIDE NIGERIA IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)