CLAIMING DEATH BENEFITS OF A DECEASED EMPLOYEE IN NIGERIA

A. Introduction

This edition of Akintunde Esan’s Legal Illumination is focused on providing legal illumination for the next of kin, beneficiaries, dependants or legal representatives of deceased employees having challenges with claiming their death benefits.

B. The Relevant Laws

The claiming of death benefits of deceased employees/workers in Nigeria is subject to the provisions of Nigerian Labour Law, Insurance Law, Employee's Compensation Law and Administration of Estate Laws. 

C. Employee’s Death Benefits

The Death benefits of a deceased employee for the purposes of this legal illumination are all the benefits that, accrued or accrues to an employee by virtue of his or her employment as at the time and date of his or her death, which his or her next of kin, beneficiaries, dependants or legal representatives are legally entitled to claim. 

These benefits could be one or more of the following: outstanding salaries, bonuses and allowances, pension and retirement fund, insurances, compensations, reimbursements, material entitlements, gifts and miscellaneous policy, contractual and statutory entitlements. 

D. Employment Contract and Death of an Employee

Generally, the Law which regulates the terms and conditions of employment in Nigeria is the Labour Act. 

The Act provides that, a contract of employment becomes terminated by the expiry of the period for which it was made; or by the death of the worker before the expiry of that period; or by notice in accordance with section 11 of the Labour Act or in any other way in which a contract is legally terminable or held to be terminated.1 

The termination of a contract by the death of an employee shall be without prejudice to the legal claims of his personal representatives or dependants.2 

Likewise, a contract of employment cannot be deemed to be binding on the family or dependants of an employee (dead or alive) unless it contains an express provision to that effect.3 

E. Compensation for the Death of a Deceased Employee

The Employee's Compensation Act 2011 provides compensation for death, injuries or disease arising out of or in the course of an employment. Where death results from the injury of an employee, the Act provides that compensation shall be paid to the dependants of the deceased.4

F. The Pension of a Deceased Employee

Generally, there are pension schemes designed to provide employees with a regular and stable income after retirement from employment and to also serve as benefits to the employee’s dependants upon his or her demise. 

The Law that governs and regulates the administration of the contributory pension scheme for both the public and private sectors in Nigeria is Pension Reform Act 2014 which repealed the Pension Reform Act No. 2 of 2004 (repealed Act).

  

The Act provides that every employee shall maintain a Retirement Savings Account (“RSA”) in his name with any Pension Fund Administrator (“PFA”) of his choice. The RSA is financed by contributions from both the employer and employee.5    

In the event of death, before or after retirement, the funds in RSA would form part of the deceased employee’s estate, the implication of which is that, it is only the personal representatives of the deceased which are either the Executors appointed by his or her will or Administrators who have obtained Letters of Administration from the Probate Registry of the High Court with the requisite jurisdiction that can make claims.

In essence, it is only the next of kin, dependant or beneficiaries stated in a Will admitted to Probate or recognised in a Letter of Administration as the beneficiaries of the estate of the deceased employee that would be entitled to claim the funds in the RSA.6   

G. Group Life Insurance Policy

Section 4(5) of the Pension Reform Act, 2014 provides that every employer shall maintain a Group Life Insurance Policy in favour of each employee for a minimum of three times the annual total emolument of the employee.

In the event of death, the entitlement of the deceased employee under the Life Assurance Policy does not accrue to the estate of the deceased employee and shall be paid by the Insurance Company directly to the named next of kin or beneficiary on record.

Section 8 of the Pension Reform Act, 2014 provides further that, the mandatory Group Life Insurance Policy prescribed under Section 4(5) of the Act shall be paid to the named beneficiary or next of kin of a deceased employee in line with Section 57 of the Insurance Act.7  Unlike under the repealed Pension Act.8

H. Administration of the Estate of a Deceased Employee

The law which regulates the Estates of deceased persons is the Administration of Estates Laws of the states of the federation of Nigeria, while the procedure for the grant of the right to administer the estate of deceased persons is governed by High Court (Civil Procedure) Rules of each state of the federation.

It is instructive to note that, the death benefits of a deceased employee accrues to his estate and under the Administration of Estate Law9 no beneficiary, personal representative, next of kin or dependant of a deceased employee is automatically entitled to claim from his or her estate without first applying for and obtaining Letter of Administration or probate if named as an Executor in the will of the deceased employee which makes reference to the said death benefit.10 

I. Conclusion

Sometimes misunderstanding on death benefits between the employer of a deceased employee and the beneficiaries of deceased employee may result into reluctance of the employer to release the benefits to them. 

Equally, lack of understanding among the beneficiaries themselves seeking to claim the death benefits may degenerate into a crisis, confusion and stiff resistance from employers, siblings, surviving spouses, step fathers, step mothers, relatives and other interested parties.

At such a juncture, the intervention of a competent and resourceful Lawyer sound in Nigerian labour law, insurance law, pension law, property law and administration of estate law becomes inevitable in order to get the relevant issues sorted out.

You may contact Akintunde Esan (the Legal Adviser Online) or Ase Olodumare Chambers for further illumination on how to claim the death benefits of a deceased employee or benefactor and on how to obtain a Letter of Administration or Probate in Nigeria.

CLAIMING DEATH BENEFITS OF A DECEASED EMPLOYEE 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)

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1.    Section 9 (7) ) Labour Act

2.   Section 9 (8) ) Labour Act

3.   Section 9(1) Labour Act

4.   Section 17 Employee's Compensation Act, 2011

5.   S.3 and 4 Pension Reform  Act, (PRA)2014

6.   S.8 PRA,2014

7.   Insurance Act 2003, Cap. N53 LFN vol. 7 2004 “A policy of insurance shall not be made on the life of a person or other event without inserting in the policy the name of the person interested in it, or for those whose benefit or on whose account the policy is made.”

8.   Pension Reform Act No. 2  2004

9.   Lagos State Administration of Estate, Laws of Lagos State,2015

10. Ironbar v. Federal Mortgage Finance. (2009) 15 NWLR (Pt.1165) CA 506 at 533, paras, B-F

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)

THE STATUS OF THE PROPERTY JOINTLY OWNED BY A DECEASED SPOUSE AND THE SURVIVING SPOUSE IN NIGERIA

A couple contracted marriage under the Marriage Act and after 18 years of marriage the husband died intestate. Meanwhile, during his lifetime a landed property was purchased in his name and that of his spouse. Following the death of the husband intestate, the members of the family of the late husband began to contend the right of the wife over said landed property. These kind of scenarios have caused the question to be asked what is the status of the marital property jointly owned by a deceased spouse and the surviving spouse ?

Property acquired by either spouse during the course of a marriage is considered a marital property. Under customary law, only men have the right to own land. Sharia law does not allow women access to real property. Under customary law, a widow cannot inherit marital property. However a couple married under the Marriage Act can own property in their individual names or jointly.

Whether a marital property needs to go through the probate process depends on the type of ownership. In this regard, there are two kinds of ownership and survivorship under the common law, which are applicable in Nigeria and they are :

a.       Joint Tenancy; and

b.     Tenancy- in- common.

Joint Tenancy is where two or more people jointly own a property. In the event of any of the owners predeceasing the other owners, the deceased owner’s share of the property devolves to the surviving beneficiaries of such a property to the exclusion of the estate of the deceased joint owner.

Tenancy-in-common is dissimilar  to joint tenancy, the deceased owner’s share of property forms a part of his estate, to be inherited according to the terms of his or her Will (if there is one) or according to Administration of Estate Law if he or she died intestate.

Whether a devise or a bequest to two or more beneficiaries under a Will will be regulated by the rules of Joint Tenancy or Tenancy-in-common will depend on the interpretation of the wording of the Will or Title Document.

Where no specific words of severance are used in devolving a property, which indicate separate partitions or interest of the same property devolving to two or more beneficiaries, or to two or more people, the law assumes that a joint tenancy has been created with the result that the estate of a deceased joint owner cannot assume the place of the deceased in the enjoyment of such a property. A Joint Tenancy is therefore implied where there is a unity of title, unity of interest, unity of time, and unity of possession.

On the other hand, the presence of any of the following words in a Will creates a Tenancy-in-common: “in equal shares”; “share and share alike”; “to be distributed between”; “to be distributed among them in joint and equal proportion”; “equally”; “among”; and “respectively”.

In the case of Chinweze v. Mazi (1989) 1 SC (part 11) 33 at 46, the Supreme Court held that by operation of Law, joint tenancy leads to the doctrine of survivorship by which if one joint tenant dies without having obtained a separate share of the property for him or herself, during his or her life time, his or her interest will not pass to his or her estate but such interest will accrue to the other surviving joint tenants.

The Supreme Court also held that, the fact that, the title document did not contain words of severance, the half-brothers to the 2^nd Defendant’s sister could not take any benefit in the contested property due to the applicability of the rules of joint tenancy to the disputed property.

In the said case, the eminent jurist Oputa JSC, made an instructive affirmation of the decision of the trial court and the Court of Appeal thus:

“When therefore Elizabeth Chinweze died intestate her interest in No. 5 Ogui Road did not enure to her estate but instead it accrued to the 1st Defendant Veronica Masi nee Chinweze as the surviving joint tenant.
The plaintiffs therefore had nothing to inherit. They are strangers to the property No.5 Ogui Road, Enugu, now in dispute. The Court of Appeal agreed with the above analysis.
The above is a correct statement of the law. I also agree.”

Likewise, the Supreme Court per Ayoola JSC, in the case of Obasohan v. Omorodion (2001) LPELR-SC.131/1996 or (2001) 13 NWLR (Pt.729) 206  opined  as follows:

“The rule is that where a joint tenant dies without having a separate share in the joint property, his interest passes to the remaining joint tenants and not to his successors or personal representatives.”   

      

In answering  the question  whether the rule of survivorship as developed under the   common   law   is   applicable   to   joint acquisition of property under customary law Ayoola JSC in Obasohan v. Omorodion (supra) enthused that:

“It is misconceived to assume that a joint acquisition of property subject to customary law creates joint tenancy in the meaning in which the term is known at common law.   In my opinion, what is created is co-ownership to be attended   by   its  own   incidents  as  developed   in customary law and not common law.  Such incidents of co-ownership have been developed in regard to family property and there is no reason why such incidents should not apply by analogy to joint acquisition of property as in this case, it may well be noted that the feudal origins that fashioned the rule of jus accrescendi in English law has no place in customary law.”

THE STATUS OF THE PROPERTY JOINTLY OWNED BY A DECEASED SPOUSE AND THE SURVIVING SPOUSE 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)

WHO IS ENTITLED TO APPLY FOR LETTER OF ADMINISTRATION OF ESTATE IN NIGERIA

There are basically three systems of law governing intestate succession in  Nigeria. These are:

(i)  Common Law, 

(ii)  Laws of Administration of Estate in various state; and

(iii) Customary Laws

The factor, which determines which system is to apply in every case, is the type of marriage contracted by the intestate person. Where a person who contracted a statutory marriage dies intestate, his real and personal estate will be distributed according to the provisions of any local enactment relating to administration of estate, and where none exist, the common law intestacy rules will apply. See  Zaidan v. Mohsons [1973] All N.L.R. 86.

Thus, having regard to the fact that, an intestate contracted marriage under the Marriage Act, the law which governs his or her intestate succession is the Administration of Estate Law of the state which he or she was residing when he or she died intestate.

The law governing intestate succession in Lagos State is Section 36 (1) of the Old Marriage Act known as Marriage of Ordinance which  was applicable in Lagos, when it was a British Colony and after Nigeria got its  independence from the British and subsequently when Lagos was made  a Federal territory. The said Section 36(1) provides that:

“where any person who is subject to customary law contracts a Marriage in accordance with the provisions of the Marriage Ordinance and such person dies intestate after the commencement of this law leaving a widow or husband or any issue of such marriage any property of which the intestate might have disposed by will shall be distributed in accordance with the provisions of this law, any customary law to the contrary notwithstanding”.

However, after the creation of Lagos state, the Lagos State Government repealed or omitted the Section 36 (1) supra vide Section 1 of the Lagos State (Applicable Laws) Amendment Edict (1972) and adopted the Administration of Estate Law of Western Region which is the law governing the estate of an intestate in the states which made up the old western region.

Nevertheless, the provisions of the Administration of Estate Laws in Lagos State and other Western States on intestate succession as provided in Section 49 (5) are similar to the repealed Section 36 (1) of the Marriage Act.

In Salubi v. Nwariaku (2003) 7 NWLR (Pt. 819) 426 at 453, Paras. F- H  Ayoola JSC succinctly brought out the difference between Section 36 of the Marriage Act and Section 49(5) of the Administration of Estate Law thus:

The only difference in the two provisions is that while section 36(1) of the Marriage Act incorporated English law (fixed at the date of the enactment 1914) into our laws of intestate succession by reference, the later statute has directly and not by reference substantially incorporated the contents of the then current English law on the subject in its provisions with the consequence that it was not necessary to search for what the English law on the matter was.

The source of section 49(5) was itself Cap. 115 of the Laws of the Federation and Lagos, 1958 modified to signify the end of incorporation of English law by reference. The provisions of section 49(5) of the Administration of Estates Law, particularly in the portion rendered in italics in the quotation above, leave no room for any doubt that the estate in this case fell to be distributed in accordance with the "provisions of this Law", that is, the Administration of Estates Law and not English law or customary law.

It is not necessary to embark on any further analysis of the reasoning of the court below that led to the conclusion that section 39(1) of the Marriage Ordinance applied. It suffices to say that it proceeded on erroneous premises in material respects. In the later case of Obusez v. Obusez (2001) 15 NWLR (Pt. 736) 377; (2001) FWLR (Pt. 73) 25 the court of Appeal [Oguntade, Aderemi and Chukwuma-EnehJJ.C.A.] departed from the decision of the Court [Akpabio, Akintan and Ige, JJ.C.A.] in the present case. I am of the opinion that the court below was in error when it held that the applicable law governing the distribution of the estate is as prescribed in section 36 of the Marriage Act even though that error was not of significant consequence to the method of distribution of the estate. The applicable enactment is section 49(1) of the Administration of Estates Law, Laws of Bendel State. The court below should have made an order in terms that the estate of the deceased stood to be distributed to all the beneficiaries of the estate in accordance with that Law.”

It is very clear from subsection 5 of section 49 of the Administration of Estates Law that, the intention of the law maker is that customary law be excluded in relation to the estate of persons to which the subsection applies.  It is also very clear that the above provision deals with succession to intestate property of a person married under the Marriage Act who died intestate while residing within Lagos State. See Per Onnoghen JSC Obusez v. Obusez (2007) 10 NWLR (PT. 1043) 430 at 459 , H-B– 460,paras

Section 49(5) of the Administration of Estates Law, Laws of Lagos State  provide that, in the event of a spouse married under the Marriage Act dying intestate and being survived  by his spouse and children , the surviving spouse shall be entitled to two thirds of  the  real estate of the intestate.

This entitlement to two thirds of the estate of the intestate makes such a spouse a beneficiary of the estate of the intestate and a qualified person to apply for letter of administration of the estate of her late husband.

Thus, it glaring from the foregoing that, the property of a person who married under the Marriage Act but died intestate would ordinarily devolve to his wife. Aboki, JCA, Motoh v. Motoh (2011) 16 NWLR (pt. 1274) 474 at 530, paras. B-C puts it succinctly thus:

“The position of the law is that, where a man who marries under the statute dies intestate, his estate is only inheritable by the wife legally married under the Marriage Ordinance or Marriage Act.”

Notwithstanding, the position of the law expound above, by virtue of Section 26 of the Lagos State Administration of Estate Law other beneficiaries of the intestate such as his children (including children born out of wedlock during the subsistence of the marriage) and relations which includes: brothers, sisters, half-brothers and half-sisters, aunts, nephews, nieces and in some cases friends are eligible to apply for letters of administration. See UBA v. Obianwu (1999) 12 NWLR (Pt. 629) 78. Nevertheless, the surviving spouse takes precedence over the children and the relations of the intestate.

In Obusez v. Obusez (supra) the Supreme Court rejected the argument that, the grant of letters of administration to the 1^st respondent (the surviving spouse) along with the 2^nd respondent (a friend of the intestate), who is a total stranger to the deceased family to the exclusion of the appellants should not have been made and that the grant was a wrong exercise of discretion resulting in a miscarriage of justice and a derogation, from the appellants constitutionally guaranteed right to family life.

Also, where the intestate has divorced his wife and his surviving children are still minors or under-aged, the letter of administration will be granted to the divorced spouse. In Administrator- General v. Coker (1948) 16 NLR 11, it was held that, inspite of the divorce, the mother was in the circumstance the right person to represent the child during minority and that, the grant should be issued jointly to her and a relative of the deceased. 

Do you intend to apply for Letter of Administration or you have issues on who is entitled to apply for it, in the circumstance, you are advised to contact Akintunde Esan for further illumination.

Akintunde Esan, Managing Partner/Principal Consultant, Ase Olodumare Chambers

GOOD NEWS !

If you lack the necessary funds to pay for the 10 percent (10%) of the value of the money in the Bank Account of  the deceased required to be paid to the Probate Registry in order to obtain Letter of Administration.

Contact Ase Olodumare Chambers or Akintunde Esan for  further information. 

WHO IS ENTITLED TO APPLY FOR LETTER OF ADMINISTRATION OF ESTATE 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)

Click to view :  

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APPLICATION FOR PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA

“A good man leaves an inheritance to his children's children: and the wealth of the sinner is laid up for the just.” 

The Book of Proverbs 13:22

1. Administration of the Estate of a Deceased Person
The law which regulates the Estates of deceased persons is the Administration of Estates Laws of the states of the federation of Nigeria, while the procedure for the grant of the right to administer the estate of deceased persons is governed by High Court (Civil Procedure) Rules of each state of the federation. The Administration of Estates Law of Lagos State was a result of adoption of a similar Administration of Estates Law of former Western State of Nigeria.

The Administration of Estates Laws and the Probate Rules of Procedure are made with the intent to forestall the properties left behind by deceased persons from falling into the hands of unscrupulous persons and particularly those the deceased would not ordinarily wished to inherit his or her properties.

The Administration of Estates Laws do not apply to the distribution, inheritance or succession of the Estate of a deceased person whose affairs were regulated by customary law during his or her lifetime.
The Administration of Estate Laws in Nigeria provide for a legal system of administration of the estate of deceased persons which entails the verification of the claims of persons claiming to be entitled to the estate of deceased persons and subsequently grant the authority or power to administer the estate to the persons who have pass through the verification process at the Probate Registry.

2. Types of Grant of Authority to Administer the Estate of Deceased Persons

There are three (3) categories of grant of authority to administer the estate of deceased persons, these are:

a) Grant of Probate – This is where the deceased dies testate, leaving a valid Will with the executors appointed in the Will to carry out the wishes of the testator.

b) Grant of Letter of Administration with Will – This is where the deceased person dies testate but without appointing executors; or the appointed executors are late; or the executors are infant; or the executors have renounced probate.

c) Grant of Letter of Administration without Will – This is where the deceased person died intestate (without a Will) and so could not appoint executors.

3. Scope of Grant of Authority to Administer the Estate of Deceased Persons

An application for a grant of Letters of Administration may be made either for a limited grant or a full grant and the limited grant may be in respect only of the real estate or of the personal estate of the deceased person. A full or general grant is granted to cover real and personal estate and all assets in the estate and for all purposes without time limit. Whilst, a limited grant is one that is limited as to time; limited to part of the estate only; and limited as to a purpose. Ademola, Ejiwumi and Williams v. Probate Registrar (1971) 1 All NLR 155 at 162

A grant of letters of administration in respect of personal estate does not cover the administration of the real property of the intestate. See Madam Christiana Ugu v. Andrew Ebinni Tabi (1997) LPELR-3324(SC)

4. Applications for Grant of Authority to Administer the Estate of Deceased Persons

All applications for the granting of any Letters of Administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected therewith shall be made to the Probate Registrar of the State High Courts.
Before any person can legally exercise any authority on the real and personal estate of a deceased person in law, he or she must have been granted the Probate or Letter of Administration of the deceased estate.

5. What is Probate ?

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 probate, is called “proving the will”. A probate merely confirms the authority of an executor, it does not confer authority. The authority of the executor is derived from the Will.

6. What is Letter of Administration ?

Letter of Administration is the legal authority granted by the Probate Court to a person called the administrator or administratrix to administer the estate or property of a person who died intestate. A person is said to have died intestate when he dies without leaving behind a valid will. The administrator derives his or her authority to act from the terms of the letters of administration, and where the letters of administration is not granted, an administrator lacks the authority to act. It is instructive to note that while a probate merely confirms the authority of an executor, a letter of administration confers authority on an administrator. Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.

7. Executors and Administrators

Customarily, the person granted the Probate is called an executor or executrix if female, while the person granted the Letter of Administration is called an administrator or administratrix if female.
Executors and administrators are also referred to as personal representatives, whether acting with regard to personal or real property of the deceased. Per Ogwuegbu, J.S.C. in Madam Christiana Ugu v. Andrew Ebinni Tabi (supra) at page 23, Paras.E-F.

8. Assent

An assent (also described as vesting assent) is the instrument by which a personal representative of a deceased person conveys land to the beneficiary entitled to it. The beneficiary may be a devisee under a will or the next-of kin of a deceased intestate, that is a person who died without making a will.

9. Time for Grant

In Lagos State, no grant of administration with the Will annexed shall issue within fourteen (14) days of the death of the deceased, and no grant of administration, without the Will annexed, shall issue within twenty one (21) days of such death.

10. Liability of Executor Neglecting to Apply for Probate

If any named Executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for Probate within three (3) months after the death, or after the termination of any suit for or dispute in respect of Probate or administration, he may, independent of any other liability be deemed to be in contempt of Court, and shall be liable to such fine of not less than Fifty Thousand Naira, (N50,000.00) as the Judge deems fit to impose.

11. Procedures for the Grant of Probate of a Will

There are two procedures for the grant of probate of a Will, namely:

a. Common form; or

b. Solemn form

See Chief Eyo Edem Nsefik (Since Dead) & Ors v. Rosemary Muna & Ors. (2013) LPELR-21862(SC)

a. Common Form

Common form is the procedure employed where it is not anticipated that, there would be any challenge to the grant. It involves establishing that it was in fact the testator (the maker of the Will) who died; that the Will was properly signed and attested and that the executors have been appointed. Once those requirements have been fulfilled and there is no caveat entered against the grant, the propounders of the will would have made out a prima facie case of entitlement to the grant.

The procedure for applying for grant of Probate in common form is commenced by an application to the Probate Registrar for probate by an interested person either personally or through his legal practitioner and the filling and completing the relevant forms and accompanied with required documents. The basic documents required to process probate in Lagos State for instance are as follows –

i. An application letter to the Probate Registrar, which shall indicate –

· Identity of the testator by stating his name, date of birth, address, profession, marital status, names of spouse and children;

· The date and place of the death of the testator;

· That the testator was resident within the jurisdiction of the court shortly before his death;

· That the testator was found to have made a Will; and

· Name of executors, if any, in the Will.

ii. A death certificate of the testator issued by the National Population Commission.

iii. A declaration on Oath by executors to the effect that they will faithfully administer the estate of the testator and render accounts according to the Will of the testator.

iv. An Oath or justification by sureties on behalf of the applicant in a specific penal sum to guarantee his administration of the estate.

v. A duly completed bond by the applicants to pay the debts and liabilities of the testator’s estate, to distribute the estate and also make inventory.

vi. A Bank certificate issued by the Probate Registrar to a personal representative or applicant to inquire into the details of the testator’s bank account, if any.

vii. A duly completed inventory specifically listing the properties of the testator.

viii. A sworn affidavit of attesting witnesses of the Will stating that they are witnesses to the executed Will, and if the testator was blind or an illiterate, that they were present during the interpretation of the contents of the Will to the testator.

ix. Passport photographs of the applicants and witnesses to the Will.

Upon compliance with the conditions precedent for the grant of probate, the Probate Registrar shall grant probate to the applicant.

b. Solemn Form.

On the other hand, where the Will is being contested, it would involve a trial at the High Court; thus, the executors must apply in solemn form, which means a statement of claim is filed under the standard procedure for civil proceedings in the High Court. The party who is contesting the Will would be named as a defendant. He would then have the opportunity of filing a statement of defence and/or a counter claim if he so desires. Pending the decision of the action in court, the court has the discretion to grant a temporary administration pendete lite to preserve the estate.

i. Will Being Propounded by the Executors

In the action following a dispute when a Will is being propounded, it is the duty of and the burden lies on the propounders of the Will to start the calling of witnesses to prove that all required legal conditions of making a valid testamentary document were met including the mental and physical capacities of the deceased.

In a situation where the executors are applying for the grant of probate in solemn form it is not in doubt that they are propounding the will and must begin by leading evidence to show, prima facie, that the testator had the necessary testamentary capacity to make the will and that there was due execution. Thereafter the onus would shift to the challenger to disprove the assertion. Chief Eyo Edem Nsefik (Since Dead) & Ors v. Rosemary Muna & Ors. (supra) Per kekere-Ekun, J.S.C.

ii. Where the Validity of the Will is Being Challenged

A person challenging the validity of a Will is required to file a caveat at the Probate Registry. A caveat is a notice in writing or a form lodged in the probate registry that no grant is to be sealed in the estate of the deceased named therein without notice to the person who entered the caveat. No grant can be sealed if the registrar has knowledge of an effective caveat. See Dan-Jumbo v. Dan-Jumbo (1999) 7 KLR (Pt.88) 2341 at 2355, para. G, per Wali JSC.

After the entry of caveat a warning or notice to appear is issued against the caveator (a person who files a caveat) by the party whose application for grant has been stopped and the appearance to such warning by the caveator will disclose the names and addresses of the parties and their respective interests in the estate of the deceased, and with this information it is open to either of them if the interest conflict, to commence an action against the other for the purpose of establishing his own claim.See Dan-Jumbo v. Dan-Jumbo (supra) at 2356, para. A, per Wali JSC.

The caveator is entitled to the revocation of the grant of the probate in respect of which he was not put on notice by the applicant for probate. See Dan-Jumbo v. Dan-Jumbo (supra) at page 2347, paras. B-C

A party who intends to apply for probate can counter a caveat by filing a writ of summons for declaration or pronouncement on the validity of the Will. See Dan-Jumbo v. Dan-Jumbo (supra) at page 2347, paras. B-C

In the case of Dan-Jumbo v. Dan-Jumbo (supra) at page 2354, para. B, it was held by the Supreme Court per Wali JSC that, the Probate Registrar was not entitled to grant probate to the claimants who filed an action for the declaration that a will is valid and got judgment in their favour. Upon which the defendant filed an appeal notwithstanding the fact that the defendant did not filed a motion for stay of execution. There was no necessity to apply for a stay of execution as the lis was still pending and the will was still in litigation.

The procedure for filing a caveat is provided in Probate Rules, in the High Court Civil Procedure Rules of the states of the Federation. Under the Lagos State Probate Rules:

· The caveat is in Probate Form 3 or Form 4 of Lagos High Court Civil Procedure Rules.

· The Probate Registrar shall bring to the notice of an applicant for probate the existence of any caveat, and shall not seal any probate if he has knowledge of any effective caveat to the application for probate.

· The Caveat shall be effective for three (3) months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further Caveat or Caveats and except with the leave of the Judge, no further Caveat may be entered by or on behalf of any Caveator whose Caveat has ceased to have effect.

· The applicant for grant of probate may serve a warning to the person who entered the caveat to give particulars of any contrary interest which he; the caveator has in the estate of the testator.

· Where a caveator wishes to respond to the warning, he is required to file an appearance to the citation or warning. In the appearance, the caveator will disclose the nature of his interest in the estate and the reason he desires that the applicant should not be granted probate.

· Where an appearance is not entered, the caveator who has not entered appearance to the warning may withdraw his caveat by giving notice of withdrawal to the Probate Registrar.

· Where the caveator fails to enter appearance to a warning or citation within the specified period of three (3) months the citor (the person warning) may file affidavit showing that the caveator has been cited and warned, but no summons or response has been received. Thereafter, the caveat shall cease to be effective and probate may be granted. Unless a further caveat is entered.

· The warning is in Form 5 and Form 6 is used by the caveator to disclose the nature of his contrary interest in the estate of the testator.

· Where a probate action is commenced (whether or not any caveat is entered), the action will operate to prevent the sealing of a grant until application for grant is made by the person shown to be entitled by the decision of the court in such action.

· A Caveat filed by a person who had knowledge of probate action and still files a caveat is invalid. Any Caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action.

· A caveator not having interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person, may within eight (8) days of service of the warning upon him inclusive of the day of such service, or at any time if no affidavit has been filed by the person warning that the caveator has been served with the warning and has not responded, issue and serve a notice to be served on the caveator.

iii. Challenging the Will Without Filing Caveat

When there was no caveat entered after receiving notice from the Probate Registrar, in the action by an aggrieved party subsequently challenging the grant of probate, the Will is no longer being propounded. It has passed the stage of proving. The attackers of the validity of the Will who are seeking an order revoking the probate have the burden at this stage to prove, inter-alia, that the testamentary document was not validly executed and therefore probate was granted in error. They are to start the hearing before the trial court but not the executors whom the law presume to be entitled to administer the estate referred to in the Will on probate.

iv. Notice to Executor to Prove or Renounce Will

The Probate Court may on the application of any person claiming an interest under a Will, give notice to the Executors therein named, to come in and prove the Will, or to renounce Probate, and they, or some or one of them, shall within twenty one (21) days after notice, come in and prove or renounce accordingly.

v. Liability of Executor Neglecting to Apply for Probate

If any named Executor in the Will of the deceased takes possession and administers or otherwise deals with any part of the property of the deceased, and does not apply for Probate within three (3) months after the death, or after the termination of any suit for or dispute in respect of Probate or administration, he may, independent of any other liability be deemed to be in contempt of Court, and shall be liable to such fine of not less than Fifty Thousand Naira, (N50,000.00) as the Judge deems fit to impose.

vi. Application for Subsequent Probate

There are special circumstances that may warrant the application for a subsequent probate, such as:

1. Where one of the executors was underage at the period the original grant was made to the other adult executors has attained maturity. He can apply for a subsequent grant.

2. In the case of death of one of the four (4) executors, where the maximum number of four executors has been made or for any reason, one of the executors is unavailable, or does not wish to take grant immediately, he may apply for subsequent grant or double probate subsequently.

vii. Persons Entitled to Grant of Probate

The person or persons entitled to a grant of Probate or Administration with the Will annexed shall be determined in accordance with the following order of priority:-

a. The Executor;

b. Any residuary legatee or devisee holding in trust for any other person;

c. Any residuary legatee or devisee for life;

d. The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency or where the residue is not wholly disposed of by the Will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person.

e. Any specific legatee or devisee or any creditor or, the personal representative of any such person or where the estate is not wholly disposed of by Will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion to it;

f. Any specific legatee or devisee entitled on the happening of any contingency, or any person having no interest under the Will who would have been entitled to a grant if the deceased had died wholly intestate.

12. LETTERS OF ADMINISTRATION (WILL ATTACHED)

Where a testator fails to nominate a person to be his executor of his will or where an executor is expressly named in a will but the named executor is not available or competent to apply for probate then letters of administration (Will attached) will be applied for.

Where a testator fails to nominate a person to be his executor, any person who, upon the terms of the will, has been appointed to perform the essential duties of an executor according to the tenor of the will is entitled to a grant of probate. In the case of Mudasiru v. Abdullahi (2011) 7 NWLR (Pt. 1247) 591 at 619-620, F-A, D-G, it was held that though the 1^st -5^th Respondents were not expressly appointed as executors in the will, however , by reason of their job description in the will, they were executors according to the tenor of the will.

There are circumstances where an executor is expressly named in a will but is not available or competent to apply for probate, these circumstances include where:

a. The sole executor is an infant, a person of unsound mind or is incompetent due to other disabilities.
 
b. The sole executor renounces the Will or he refused  or neglect in responding to a citation to accept or refuse to take grant.

c. The executor or all the executors are abroad and they jointly appoint an attorney to take out the grant.

d. The testator appointed a sole executor who predeceased the testator or died before proving the Will.

13. LETTER OF ADMINISTRATION (WITHOUT WILL)

Where a person dies intestate, his relatives or beneficiaries are required to apply for the Letter of Administration (without Will) in order to be conferred with the authority administer or deal with the estate of the deceased property or initiate or defend legal proceedings pertaining to the estate. Such property can be administered under customary or English law depending on the circumstances of the estate. See Olowu v Olowu (1985) 3 NWLR (Pt. 13) 372 (SC); Olowu v Olowu (1994) 4 NWLR (Pt. 336)90; Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.

a. Applications for Letters of Administration, without a Will Attached,

The Applicant is required to provide under Oath, Affidavits, Bonds or Guarantees with Sureties before such applications can be considered. The value of the administrative Bond(s) can be twice the value of the Estate. The latter attracts additional costs and expense especially as the higher the value of the Estate, the higher the expense and the Estate Fee.

Every application for the grant of Letters of Administration, without a Will annexed, must file:

i. A true declaration of all the personal property of the deceased person with a true value of these properties also stated.

ii. Upon making the application, the Applicant is issued a Bank Certificate, together with other statutory forms, where the bank account balance and the value of shares of the deceased person is stated by the Banks and the Registrars of companies where the deceased person operated or owned shares.

b. How to Challenge the Grant of Letter of Administration

The procedure for challenging the grant of letter of administration is similar with that of challenging the grant of probate discussed above. In the case of Otun v. Otun (2004) 12 MJSC 53 at 75,paras C-D, per Tobi,JSC it was held that, it is the law that upon a notice that Letters of Administration will be issued to a person, a party is free to raise objection by way of caveat.

Although, it is the law that upon a notice that letters of administration will be issued to a person, a party is free to raise objection by way of caveat, the failure to enter a caveat cannot be Justification for obtaining letters of administration by fraud.

14. Application Fees

There are various fees to be paid before a Probate or Letters of Administration application can be evaluated and approved. Once a Probate or Letters of Administration is approved by the Probate Registry, an Estate fee of between five to ten percent of the value of the Estate depending on the State, must be paid to the State Government where the Probate application is made and approved.

15. Conclusion

Applying for Probates or Letters of Administration in Nigeria can be very frustrating to the uninitiated, particularly persons who are not legal practitioners sound in the law and practice of Administration of Estates of the relevant jurisdiction. Save yourself this evitable frustration contact a legal practitioner in your jurisdiction or contact Akintunde Esan for further illuminations on the application for your Probate or Letters of Administration in Nigeria.

APPLICATION FOR PROBATE AND LETTERS OF ADMINISTRATION 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)

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CLAIMING DEATH BENEFITS OF A DECEASED EMPLOYEE IN NIGERIA 

GOOD NEWS !

If you lack the necessary funds to pay for the 10 percent (10%) of the value of the money in the Bank Account of  the deceased required to be paid to the Probate Registry in order to obtain Letter of Administration.

Contact Ase Olodumare Chambers or Akintunde Esan for  further information.