Family law

Wills: What Happens When A Testator Dies

A Will can be referred to as a document written by a person of their intentions which should be carried out after they die. A Will is a testamentary document, that is it takes effect after the death of the testator.  A testator is simply the person who writes the Will. An individual can either die with a Will or without a Will, where he dies without writing a Will he said to have died “intestate”, and where he makes a Will he is said to have died “testate”.

This article discusses what happens after a testator dies where he died testate. A Will is made by the testator by giving instruction to his legal practitioner, and such Will must be attested to (signed) in the presence of at least two credible witnesses. A beneficiary (a person who Will benefit from the estate of the testator) to the Will cannot be a credible witness to the Will.

EXECUTORS OF A WILL

Executors of a Will are those assigned to administer the Will of a deceased. Where the Will expressly assigns a person to administer the Will they are called “executors”, however where the Will does not assign anyone, the court assigns and they are called “administrators”.

Executors may be appointed in different ways, it could be expressly in the Will by the testator which may state their address, occupation and other particulars, or appointed impliedly by the wordings of the Will, or appointed through a nominee in a Will, that is the testator nominates another person to appoint an executor, or they could be appointed by the court.[1]

GRANT OF PROBATE

After a testator dies while leaving a Will, the first action is to apply to the court for a grant of probate. Probate is the authority that validates the powers and functions of an executor.[2]  The validity of an executor continuing to act depends on the confirmation of his powers by the grant of probate[3]. Probate is granted by the court. It 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.[4]

Procedure To Obtain  Probate

  1. The solicitor of the testator who has knowledge of the Will deposits the Will with the probate registrar. The solicitor writes the registrar and provides the following information; the fact of death of the testator accompanied by the death certificate, the fact that the testator made and deposited a Will at the registry stating the particulars, and the names of persons interested in the estate of the testator, and requesting the registrar to appoint a date, time and venue where the Will would be read to those interested.
  2. The solicitor or probate registrar will then assemble all those interested in the estate of the deceased, and proceed to produce the Will, break the seal, read the Will in the presence of all interested persons, and make a record of the proceedings.
  3. After the reading of the Will, application for the grant of probate will then be made by the executors to the Will. This is done by filling the necessary forms and submitting the forms at the probate registry. These documents include;
  • Application for Probate form completed by the applicant.
  •  Death certificate of the deceased stating where and when the deceased died.
  •  Declaration on Oath by the executors stating that they will carry out their duties with filling and render accounts of the estate.
  •  Oath by Sureties on behalf of the applicant with a specific penal sum.
  •  A duly completed bond by the applicants to pay the debts and liabilities of the deceased estate, to distribute the estate and also to make inventory.
  •  An authorisation by way of bank certificate is issued by the registrar to the applicants who will proceed to get the deceased statement of account.
  •  A duly completed inventory of all the properties of the deceased person.
  • A sworn affidavit of attesting witnesses to the Will stating that they attested to the Will.
  •  Passport photograph of the applicants and witnesses to the Will.

Following the submission of the above documents, if the probate registrar is satisfied, he grants the probate to the applicants with a copy of the Will attached.

It is important to note that in certain cases contentions can be made to the grant of probate by any interested persons. The contention is raised filing a “caveat”, after which the person raising the contention files a “warning/citation” stating his interest in the probate and why he raised the contention. The probate applicant can thereafter respond with an appearance, defending himself. Where a caveat is filed, and the caveator (the person raising the caveat) files a warning, probate cannot be granted until the contention is resolved. An action will be filed in court, and the matter will be heard in court for grant of probate.

DISTRIBUTION OF ESTATE TO BENEFICIARIES

Following the grant of probate, the executors have the duty of administering the estate of the deceased. The executor has a duty to distribute the estate to the beneficiaries in accordance with the Will. The executor does not have any right to use or dispose of the property as he just holds the properties in trust for the beneficiaries. Where the executor does not distribute the properties wrongly, the beneficiaries can sue to recover properties they are entitled to under the Will.

However, before the executor distributes the properties to the beneficiaries, he must first of all collect and gather all the estates from wherever they may be and pay any debts and liabilities the deceased accrued before their death. Payments of debt and liabilities are of priority to the executor, and it is the primary use of the properties of the deceased. After the debts and liabilities are cleared, then the properties can be distributed to the beneficiaries. 


[1] Yusufu Diadem, Property Law Practice In Nigeria 4th Edition


[1] Yusufu Diadem, Property Law Practice In Nigeria 4th Edition

[2] Yusufu Diadem, Property Law Practice In Nigeria 4th Edition

[3] Yusufu Diadem, Property Law Practice In Nigeria 4th Edition

[4] Ariwoola JSC in Nsefik v Muna

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About Lois Olagoke-Daniel

Lois Olagoke-Daniel is a legal practitioner called to the Nigerian bar in 2021. A graduate of Afe Babalola University with excellent communication, organization, and project skills. She is a lawyer that has a wild thirst for the knowledge of and also sharing this knowledge to all those within reach.