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DISTRICT COURT (CIVIL PROCEDURE) RULES, 2004

 

      Rule        

 

  

ORDER 31

                                  PROBATE AND ADMINISTRATION

 

     Preliminary Matters Application for probate or letters of administration

   1. (l) An application for probate or letters of administration in respect of the estate of a deceased person may be made only to the Court with jurisdiction over the area where the deceased had at the time of death a fixed place of abode.

(2) Despite subrule (l) where a person who does not have a fixed place of abode in the country, dies within or outside the country, the Court in the area where that person's property is located shall, subject to the Courts Act, 1993 (Act 459) or any other relevant enactment in force, have jurisdiction for the purposes of granting probate or letters administration in respect of the estate.

(3) Where the deceased has property within the jurisdiction of more than one Court, the application shall be made to only one of the Courts in respect of all the properties.

(4) Notice of an application made under subrule (3) shall be given to the Registrar of every Court which has jurisdiction over the area where any property of the deceased is located and any caveat filed in any of those Courts shall be brought to the notice of the Court before which the application is pending and that Court may stay the hearing of the appli­cation until it is satisfied that no caveat has been filed in another Court and if a caveat has been filed, the reasons necessitating its filing has been

dealt with and the caveat removed.              .

(5) In this Order property means movable and immovable property.

2. (1) The Court to which an application is made under rule 1 may, for the preservation of the property of the deceased within its jurisdic­tion or for the discovery or preservation of any will or other testamentary instruments of the deceased, take interim measures that it considers necessary.

    (2) Where the circumstances so require, the Court within whose jurisdiction the property is situated shall on the death of the person or as soon as may be practicable after the death, appoint an officer of the Court or any other person that it considers fit, to take possession of the property within its jurisdiction or put the property under seal until the property is dealt with in accordance with law.  

Intermeddling with property

3. Where a person who is not the executor of a will or appointed by the Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, that person

                                     (a) is subject to the same obligations and liabilities as an execu­tor or administrator,

                                     (b) commits the offence of intermeddling, and

                                     (c) is liable on summary conviction to a fine of not more than five hundred penalty units or twice the value of the estate intermeddled with or to imprisonment for a term of not more than two years or both.

Failure to apply for probate

       4. Where a person who is the executor in the will of a deceased person

                                      (a) takes possession of and administers or otherwise deals with any part of the property of the deceased, and

                                     (b) does not apply for probate within three months after the death, or after the termination of any proceedings in respect of probate or administration,

that person, in addition to any other liability which may be incurred, commits the offence of intermeddling and is liable on summary conviction to a fine of not more than five hundred penalty units or to imprisonment for a term of not more than two years or to both

Production of testamentary papers

5. Where it appears to the Court that any paper of the deceased which is or which purports to be testamentary, is in the possession or under th control of any person, the Court may, whether or not any proceeding relating to probate or administration are pending, order that person t produce the paper in Court.

Examination in respect of testamentary papers

6. (1) Where it appears to the Court that there are reasonable grounds to believe that any person has knowledge of any paper which purports to be testamentary, even if it is not shown that the paper is

(a) in that person's possession, or

(b) under that person's control,

the Court may, whether or not proceedings that relate to probate or administration are pending, order that person to attend Court and to produce the paper before the court.

(2) The order to produce a testamentary paper for examination shall be in the form set out in Form 20 in the First Schedule.

Notice to executors to come in and prove will

7. (1) The Court may of its own motion or on the application of a person who claims an interest under a will, give notice to the executors named in the will to come and prove the will or renounce probate.

(2) The executors or anyone or more of them shall, within four­teen days after receipt of the notice, come in and prove the will or renounce probate.

(3) Where an executor who has received a notice under this rule does not come to prove the will or renounce probate as required by subrule (2), the right of the executor to executorships shall be extinguished and an application for letters of administration with will annexed may be made by a person entitled to letters of administration.

(4) A notice under this rule shall be as set out in Form 21 in the First Schedule.

Application for Grant of Probate or letters of Administration

 Affidavit in support of application

8. The application for probate or letters of administration shall be supported by an affidavit sworn by the applicant and with other documents that the Court may require.

Declaration of property of a deceased

9. (1) On an application for the grant of probate or letters of adminis­tration, the Court may require evidence of the identity of the applicant in addition to that provided by the applicant, where the additional evidence is necessary or desirable.

(2) The Court shall ascertain the time and place of death of the deceased and require proof of death by production of a death or burial certificate or some other evidence to the satisfaction of the Court.

(3) The applicant shall make a declaration of the value of the property of the deceased and the Court shall, as the circumstances allow, satisfy itself of the correct value.

 

(4) The declaration under this rule shall be as set out in Form 22 of the First Schedule.

Notice of grant

 

10. (1) The Court shall order a grant of letters of administration to issue only if after the grant, notice of the grant is given for a period of not less than twenty-one days or any other period ordered by the Court, with the notice being posted in the following manner:

 

(a) in the court where the application for the grant was made;

(b) in any public place within the jurisdiction of the Court where ,the notice is likely to be seen by those who may have an interest in the estate; and

               .(c) at the last known place of abode of the deceased in respect of whose estate the grant is made.

(2) Where the grant is in respect of the estate of a person who dies intestate, the notice shall be given whenever practicable to all persons entitled to a share of the estate of the deceased under the Intestate Succession Act, 1985 (P.N.D.C.L. Ill) as amended but the Court may dispense with the notice to the beneficiaries if it considers it expedient to do so.

(3) The Court shall not order any grant of probate or letters of administration to issue until all inquiries which it considers fit to make are answered to its satisfaction.

(4) The Court shall make available every facility that is necessary for obtaining probate or letters of administration and which is consistent with the prevention of error and fraud.

 (5) Notice under this rule shall be as set out in Form 23 in the First Schedule.

Caveat

11. (1) A person who has or claims to have an interest in the estate of a deceased and who wishes to ensure that grant of probate or letters of administration is not made without notice to that person, may file a caveat as set out in Form 24 of the First Schedule.

       (2) The caveat may be filed either before or after an application has h('en made for probate or letters of administration, but before the grant.

 

(3) A caveat which is filed before an application for probate or letters of administration is made shall be brought to the notice of the Court by the Registrar as soon as the application is fIled.

(4) A caveat fIled after an application for probate or letters of administration has been made shall be brought immediately to the notice of the Court by the Registrar.

(5) On being given notice of a caveat, the Court shall direct the Registrar to bring the caveat to the notice of the applicant or the lawyer of the applicant and this notice shall be as set out in Form 25 of the First Schedule and the Court shall decline to take any further steps until the applicant duly warns the caveator in accordance with subrules 8 and 9 of this rule.

(6) A caveat shall remain in force for three months from the date on which it is filed, but may be renewed.

(7) The Registrar shall not allow any grant of probate or letters of administration to be sealed if the Registrar has knowledge of an effec­tive caveat in respect of the grant but a caveat shall not operate to prevent the sealing of a grant on the day on which the caveat is filed or on which a copy of the caveat is received.

(8) A person who fIles a caveat shall be warned and the warning shall be as set out in Form 26 of the First Schedule.

(9) The warning shall be issued by the Registrar at the instance of the applicant or any person interested in the estate and it shall require the person who fIled the caveat to file an affidavit stating the nature and particulars of any interest that person may have in the estate of the deceased.

(10) If the warning is not obeyed, the applicant shall move the Court in respect of the applicant's original motion for the grant of pro­bate or letters of administration and where the Court considers it fIt, the Court shall direct that notice be served on the caveator.

(11) If the warning is obeyed, a copy of the affidavit filed shall be served on the applicant by the Registrar.

(12) On receipt of the affidavit of a caveator, the applicant shall move the Court to grant probate or letters of administration on notice to the caveator who shall at the expense of the applicant, be served with copies of any affidavits on which the applicant intends to rely.


 

 (13) At the hearing of the motion, if the parties agree among them­selves as to the person to whom a grant of probate or letters of adminis­tration shall be made, the Court may order that the caveat be removed from the fIle and a grant be made to that person.

(14) Where the parties fail to agree on the person to whom a grant shall be made, the Court

(a) shall summarily determine who is entitled to the grant of probate or letters of administration, or

(b) if it considers it necessary, order the applicant to issue a writ against the caveator within fourteen days from the date of the order, to determine who is entitled to grant of pro­bate or letters of administration.

Order of priority for grant where deceased leaves a will

12. (1) Where a person dies and leaves a will, the executors are entitled to grant of probate.

(2) Where the executors renounce or fail to take probate, any person interested in the estate of the deceased person may apply for grant of letters of administration with the will annexed.

 

(3) The person entitled to grant of probate or letters of adminis­tration with the will annexed shall be determined in accordance with the following order of priority:

(a) a specifIc legatee, devisee, creditor or the personal represen­tative of any of these persons but administration shall be given to a living person in preference to the personal representative of a deceased person who would, if living be entitled in the same degree;

(b) a legatee or devisee whether residuary or specifIc who claims to be entitled on the occurrence of a contingency;

(c) a residuary legatee or devisee holding in trust for another person;

(d) the ultimate residuary legatee or devisee where the residue is not disposed of by the will; or

(e) a person who has no interest under the will of the deceased but who would have been entitled to a grant if the deceased had died intestate.


 

 (4) The Court may make a grant to a specific legatee or devisee if satisfied that the interest of the person entitled to the residue is so small as to justify the person being passed over.

Order of priority for grant where person dies instestate after P.N.D.C.L. 111

13. Where a person dies intestate on or after 14th June, 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority.

(a) surviving spouse;

(b) surviving children;

(c) a surviving parent;

(d) customary successor of the deceased.

Grant where two or more persons are entitled in the same degree

14. (1) Unless otherwise provided by any other relevant enactment, the number of persons to whom a grant may be made shall not exceed four.

(2) Where there is a dispute between persons who are entitled to a grant in the same degree, the Court

(a) may make a grant to anyone of them without joining the others; and

(b) shall summarily determine the dispute and make a grant to one of them as it considers fit.

Notice to accept or refuse grant of probate or administration

15. (1) Where a person who has a prior right to a grant of probate or letters administration delays, or refuses to take it and does not renounce the right, a person who has an inferior right may serve a notice as set out in Form 27 of the First Schedule, on the person with the prior right, calling on that person with the prior right to take the grant or renounce the right.

(2) If on being served with a notice under subrule (1), the person with prior right does not apply for a grant or renounce the right within fourteen days, the person serving the notice, may apply for a grant and the Court shall make a grant to the applicant if the Court is of the opinion that it is desirable to do so,

 Custody of wills

16. (1) A person may make a will and deposit it for safe custody in the Court that has jurisdiction over the area in which that person has a fIxed place of abode.

(2) A will made under subrule (1) shall be sealed with the seal of the person who made the will and the seal of the Court.

(3) An original will filed in a Court shall not be given out for any purpose without the direction in writing of the Court in which the will is filed.

(4) A certified copy of the probate or letters of administration with will annexed may be obtained from the Court.

Examination of will

17. (1) On receipt of an application for probate or for letters of administration with will annexed, the Court shall

(a) inspect the will to fInd out whether it appears to have been signed by the testator or by some other person in the testator's presence and at the testators direction, and to have been subscribed by two witnesses in accordance with the Wills Act, 1971 (Act 360), and

(b) not proceed further if the will does not appear to be properly signed and subscribed as under paragraph (a).

(2) If the will appears to be properly signed and subscribed as under subrule (1)(a), the Court shall examine the attestation clause, if any, and consider whether it shows the will to have been in fact executed in accor­dance with the Wills Act, 1971 (Act 360).

Attestation clause and witnesses

18. (1) If there is no attestation clause, or if the attestation clause is insufficient, the Court shall require an affidavit from at least one subscribing witness, if either of them is living, to prove that the will was in fact executed in accordance with the Wills Act, 1971 (Act 360).

(2) The affidavit shall form part of the probate so that the probate shall be a complete document on the face of it.

(3) If on a close examination of the affidavit it appears that the will was not in fact executed in accordance with the Wills Act, 1971 (Act 360), the Court shall refuse to grant probate.


 

DISTRICT COURT RULES, 2009

(4) Where both subscribing witnesses are dead, or on some other reasonable grounds the affidavit cannot be obtained from either of them, the Court

(a) shall require an affidavit as set out in Form 28 in the First Schedule from another person, if any, present at the execu­tion of the will, and

(b) if the affidavit cannot be obtained, shall require proof of (i) that fact,

(ii) the handwriting of the deceased and of the subscribing witnesses, and

(iii) any circumstances that raise a presumption in favour of the due execution of the will.

(5) An attestation clause and an affidavit of handwriting shall be set out in Forms 29 and 30 respectively in the First Schedule.

Blind or illiterate testator

19. Where a testator is blind or illiterate, the Court shall not grant probate of the will or letters of administration with the will annexed unless the Court is fIrst satisfIed, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution or that the deceased had at that time knowledge of its contents.

Interlineations, alterations, erasures, obliterations

20. (1) The Court, on being satisfIed that a will has been duly executed, shall carefully inspect it to see whether there are any interlineations, alterations, erasures, or obliterations that appear in it and which have to be accounted for.

(2) Interlineations, alterations, erasures and obliterations are in­valid unless they are made valid by the re-execution of the will, or by the subsequent execution of a codicil to the will.

Documents referred to in a will

21. (1) Where a will contains a reference to a document of a nature that raises a question whether it ought to or ought not to form a constituent part of the will, the Court shall require the production of the document and ascertain whether or not it forms a constituent part of the will and if the document is not produced, a satisfactory account of why it cannot be produced shall be given.

(2) A document cannot form part of a will unless it is in existence at the time the will was executed.

(3) If there are any traces of sealing wax or wafers or other marks on a will which lead to the inference that some other document has been at some time annexed or attached to the will,

                   (a) a satisfactory account of those traces shall be given,

                    (b) the document shall be produced, and

                                    (c) if the document cannot be produced a satisfactory account of why it cannot be produced shall be given.

Making copy of a will sworn to

22. Each will or copy of a will which an executor or an administrator swears to shall be marked by the executor or administrator and any person before whom the executor or administrator makes the oath as set out in Forms 31 and 32 respectively in the First Schedule.

Examination of person making affidavit

23. Where evidence is directed or allowed to be given by affidavit, the Court may require the deponent to personally attend the Court and to be orally examined before the Court in respect of the matter of the affidavit.

Double probate

24. Where probate, is granted to one of the executors named in the will, the Court may make the same grant to another executor named in the will, and the grant shall be as set out in Form 33 in the First Schedule.

Proof of will in common form

25. Where a will appears regular on the face of it and there is no dispute as to its validity, the application for probate may be sufficiently supported by an affidavit deposing to the due execution and attestation of the will and by other documents or papers that the Court may require.

Proof of will in solemn form

26. (1) Where for any reason the executors of a will are in doubt as to the validity of the will or the validity of the will is disputed, the executors may if they consider it necessary to do so, prove the will in solemn form in an action commenced by writ asking the Court to pronounce the will valid.                                                                      .

           (2) A person who claims to have an interest in the estate of a deceased person may by notice in writing request the executors named in the will of the deceased to prove the will in solemn form

(3) The notice under subrule (2) shall state

(a) the name, address and description of the person filing the notice;

(b) the interest the person has in the estate of the deceased; and (c) the specific grounds on which the validity of the will is disputed.

(4) The notice shall be

(a) signed by the person who desires proof in solemn form or by the person's lawyer;

(b) filed in the registry; and

(c) served on all executors named in the will and beneficiaries under the will.

(5) Where a notice is served on an executor under subrule (4), the executor shall not later than eight days after the service, file in the registry an answer to the notice stating the intention of the executor either to prove the will in solemn form or to renounce probate and the Registrar shall on receiving the answer serve the person who filed the notice with a copy of the answer .

(6) If an executor who is served with the notice under this rule declares an intention to renounce probate or fails to file an answer as required under subrule (5),

(a) the right of the executor to executorship shall wholly cease and the representation of the testator and the administra­tion of the estate may be effected as if the executor had never been appointed; and

(b) in the case where the executor defaults in filing an answer and shows good cause for failing to file the answer, the Court may extend the time within which the answer shall be filed by the executor.

(7) An extension of time given under subrule ( 6) (b) shall be upon terms, if any, that the Court sees fit to impose.

Issue of writ to have will pronounced valid

27. (1) An executor who files an answer under rule 26 (5) and states in that answer the executor's intention to prove the will, shall not later than eight days after filing the answer, issue a writ claiming that the will must be pronounced valid and admitted to probate.

(2) If the executor fails to issue a writ within the time specified in subrule (1), the person who issues the notice may apply to the Court for an order terminating the right of the executor to the executorship, and the Court may either make that order or extend the time within which the executor must issue a writ on terms, if any, that the Court considers just.

(3) A writ issued under submle (1) shall join as a defendant the person who issued the notice calling on the executor to prove the will in solenm form and the Court may either of its own motion or on applica­tio', join as plaintiff or defendant any person who claims or appears to have an interest in the estate of the deceased.

(4) Where the executor who is required to file an answer under rule 26(5)

(a) renounces probate,

(b) fails to file an answer after having been served with the relevant notice, or

(c) fails to issue a writ after having filed an answer and the Court makes an order under subrule (2) for the termination of executorship,

any person named as beneficiary in the will may issue a writ to establish the validity of the will and for grant of letters of administration with the will annexed.

(5) In an action brought under subrule (4) the person who files and serves a notice on the executor shall be joined as a defendant but the Court may either on application or of its own motion, order any person who claims or appears to have an interest in the estate to be joined as plaintiff or defendant.

Action to declare will valid

28. (1) A person who claims to have an interest in the estate of a deceased testator, may issue a writ against the executor for a declaration that the will is invalid, instead of issuing a notice to the executor to prove the will under rule 26 (2).

(2) In an action brought by an interested party under subrule (1), the Court may join any person who claims or appears to have an interest in the estate of the deceased as plaintiff or as defendant.

Action to revoke grant of probate or letters of administration

29. (1) Where grant of probate or letters of administration has been made, any person who seeks to have the grant revoked by the Court ay issue a writ to seek that relief.

         (2) In any action brought under rules 25 to 29, rules 32 to 43 of this order shall apply.

Administration without Will Annexed

General procedure for administration

30. (1) The Court in granting letters of administration shall proceed as far as is appropriate as in the case of probate.

(2) Where administration is applied for by one or more persons with priority or equal interest, the Court shall require proof that notice of the application has been given to the other person with prior or equ(11 interest.

Bond forms

31. (1) The person to whom administration is granted shall execute a bond as set out in Form 34 or 35 in the First Schedule, with two or more sure­ties as set out in Form 35(A) in the First Schedule, to the Registrar for the collection, entrance on and administration of the property of the deceased.

(2) The bond shall be an amount equal to double the value of the property of the deceased as sworn to, unless the Court considers it just to reduce the amount.

(3) The Court may in any case direct that more than one bond as the Court considers reasonable and just be executed.

(4) If administration is granted to the Administrator-General or if the Administrator-General is appointed to act in any capacity, the Administrator-General shall not be required to execute the bond or give security but is subject to the same liabilities and duties as if the bond has been executed or security has been given.

(5) Where it is subsequently discovered that the deceased died possessed of property which was not included in the grant or in the original affidavit, a corrective affidavit as set out in Form 36 in the First Schedule and which gives full particulars shall be given to the Registrar of the Court.

 

Administration without Will Annexed

General procedure for administration

30. (1) The Court in granting letters of administration shall proceed as far as is appropriate as in the case of probate.

(2) Where administration is applied for by one or more persons with priority or equal interest, the Court shall require proof that notice of the application has been given to the other person with prior or equ(11 interest.

Bond forms

31. (1) The person to whom administration is granted shall execute a bond as set out in Form 34 or 35 in the First Schedule, with two or more sure­ties as set out in Form 35(A) in the First Schedule, to the Registrar for the collection, entrance on and administration of the property of the deceased.

(2) The bond shall be an amount equal to double the value of the property of the deceased as sworn to, unless the Court considers it just to reduce the amount.

(3) The Court may in any case direct that more than one bond as the Court considers reasonable and just be executed.

(4) If administration is granted to the Administrator-General or if the Administrator-General is appointed to act in any capacity, the Administrator-General shall not be required to execute the bond or give security but is subject to the same liabilities and duties as if the bond has been executed or security has been given.

(5) Where it is subsequently discovered that the deceased died possessed of property which was not included in the grant or in the original affidavit, a corrective affidavit as set out in Form 36 in the First Schedule and which gives full particulars shall be given to the Registrar of the Court.

(6) Where the bond already given is not sufficient to cover the whole estate including the increased amount, a further bond shall be given in a sum sufficient to meet the deficiency.

(7) The penalty in the bond shall be double the value of the additional property and the word "intended" which comes before the word" administrator" in Form 35(A) in the First Schedule shall be omitted.

(8) Where the Registrar, is satisfied that an undertaking in the bond has been broken, the Registrar may assign the bond as set out in Form 37 in the First Schedule to another person, and that person may

                     (a) sue on the bond in that person's own name as if it had originally been given to that person instead of the Registrar, and

                      (b) recover on the bond as a trustee for all persons interested, the full amount recoverable in respect of breach of the undertaking in the bond.

                   Contentious Probate Matters

Meaning of contentious probate matters

32. For the purpose of contentious probate matters as provided for under this Order, a probate action means an action for

(a) the grant of probate of the will or letters of administration of the estate of a deceased person;

(b) the revocation of the grant of probate or letters of adminis­tration; or

(c) a judgement or order that pronounces the validity or other­wise of an alleged will.

Commencement of probate action

33.   (1) A probate action shall be commenced by writ.

(2) The title to the writ shall contain an indication of the capacity in which the plaintiff is suing.

(3) The writ must be endorsed with a statement of the nature of the relief claimed by the plaintiff

(3) Where the probate or letters of administration has not been lodged in the registry of the Court, a writ for the revocation of grant of probate or letters of administration of the estate of a deceased person shall not be issued out unless notice is given under rule 37.

(4) Where the Court grants leave under this rule, it may give direction as regards the service of pleadings, fIling of affidavit or of testamentary scripts and other matters that the Court considers necessary.

Intervention

34. (1) A person who is not already a party to a probate action may apply to the Court for leave to intervene in the action.

(2) The application shall be supported by an affidavit which shows the interest of the applicant in the estate of the deceased and shall be served on all the existing parties.

(3) Where the Court grants leave under this rule, it may give direc­tion as regards the service of pleadings, fIling of affidavits or of testa­mentary scripts and other matters that the Court considers necessary.

Notice to an interested person

35. (1) On the application of the plaintiff or of any person who intervens in a probate action, a notice as set out in Form 38 in the First Schedule may be issued against a person who is not already a party to the action but who has an interest adverse to the applicant.

(2) The notice shall inform the person with the adverse interest that judgment may be given without further notice if that person does not enter appearance in the action

(3) A notice under this rule shall be issued out of the registry and shall be accompanied by an affidavit sworn by the applicant, specifying the alleged adverse interest of the person on whom it is served.

(4) A notice is issued when it is sealed by the Registrar.

(5) A notice issued under this rule shall be served personally unless in a particular case the Court considers it necessary to order some other mode of service.

Entry of appearance

36. (1) A person authorised to intervene under rule 34 or on whom a notice has been served under rule 35 shall enter appearance

(a) within the time specifIed in the order authorising that person to intervene, or

(b) if the appearance is not limited, within eight days from the date of the making of the order or service of the notice.

Notice to bring in grant                              .

37. (1) Where an action is brought for the revocation of a grant of probate or letters of administration, the plaintiff shall serve notice on the person to whom the probate or letters of administration is granted

requiring that person to bring and leave at the registry of the Court the probate or letters of administration.

(2) A person on whom a notice is served under subrule (1) shall comply with the notice within four days from the date of service of the notice.

(3) Where a person served with a notice under subrule (1) does not comply with the notice within the time specified, the plaintiff may apply to the Court for an order directing that the probate or letters of adminis­tration be brought and left at the registry of the Court within a time that the Court may specify.

Affidavit of testamentary script

38. (1) In this rule a testamentary script means

(a) a will or draft of a will,

(b) written instructions for a will made by or at the request or under instructions of the testator, and

 (c) any document which purports to be evidence of the contents or to be a copy of a will which is alleged to have been lost or destroyed.

(2) The plaintiff and every defendant who has entered an appearance in a probate action shall depose to an affidavit as set out in Form 39 in the First Schedule.

(3) The affidavit shall

(a) describe any testamentary script of the deceased person whose estate is the subject of the action, of which the deponent has any knowledge, or

(b) state that the deponent does not know of any testamentary script; and

(c) if a testamentary script is not in the possession of the depo­nent or the deponent does not know under whose control the script is, state that the deponent does not know the name or address of any such person.

(4) Any testamentary script in the possession or under the control of the deponent shall be annexed to the affidavit.

(5) An affidavit required by this rule, together with any annexed testamentary script shall be filed

(a) within fourteen days after entry of appearance by a defen­dant to the action, or

the Court does not otherwise direct, before the action is set down for trial.

(6) Except with the leave of the Court, a party to a probate action shall not, be allowed to inspect

(a) an affidavit filed under this rule by any other party to the action, or

(b) any testamentary script annexed to the affidavit

unless an affidavit sworn by that party containing the information required under subrule (3) has been filed.

Default of appearance

39. (1) A judgement in default of appearance shall not be entered in a probate action.

(2) A defendant who is served with a writ and a statement of claim and who enters an appearance shall file a statement of defence not later than fourteen days after the service of the writ.

(3) Where the plaintiff sets down the action for trial under subrule (2), the plaintiff shall depose to an affidavit of testamentary script as required by rule 38 (2).

Pleadings

40. (1) A writ in a probate action shall be accompanied by a statement of claim which shall be served on the defendant in the action and on any person who intervenes.

(2) A defendant who is served with a writ and statement of claim and who enters an appearance shall file a statement of defence not later than fourteen days after the service of the writ.

(3) Where the plaintiff in a probate action disputes the interest of a defendant, the plaintiff shall state this fact in the plaintiff's statement of claim.

(4) In a probate action in which the interest by which a party claims to be entitled to a grant of letters of administration is disputed, the party who disputes that interest shall show in that party's pleading that if the allegations made in it are proved, that party would be entitled to an interest in the estate.

(5) A party who pleads that at the time when a will which is the subject of the action is alleged to have been executed, the testator did not know and approve of its contents shall specify the nature of the case on which the party intends to rely.

           (6) A party referred to in subrule (5) shall specifically plead the following matters if the party intends to rely on any of them:   ]

(a) that the will was not duly executed; or

(b) that at the time of the execution of the will, the testator was not of sound mind, memory and understanding; or

(c) that the will was a forgery; or

(d) that the execution of the will was obtained by undue influence or fraud.

Counterclaim

41. A defendant in a probate action who alleges or claims to be entitled to any relief or remedy in respect of a matter relating to the grant of probate or letters of administration, shall add to the defence a counter­claim in respect of the claim, relief or remedy.

Default of pleading

42. (1) Judgement shall not be given in default of pleading in a probate action.

(2) Where a party to a probate action fails to file a pleading which the party is required by this Order to fIle, then unless the Court strikes out the action, the other party may, after the expiration of the period fixed under this Order for the filing of that pleading, apply to the Court for leave to set down the action for trial.

Discontinuance

43. (1) A probate action shall not be discontinued except by leave of the Court.

(2) At any stage of the proceedings in a probate action, the Court, on the application of the plaintiff or of any party to the action, may order that

(a) the action be discontinued on terms as to costs or otherwise that the Court thinks just, and

(b) a grant of probate or letters of administration in respect of the estate which is the subject matter of the action be made to the person entitled to it

                                                             Administration and Similar

Actions Interpretation of Administration

44. (1) An action may be brought for determination of any question or relief which can be determined or granted in any administration action even if the question or relief does not involve

(a) a claim for administration of the estate under the direction of the Court, or

(b) an execution under the direction of the Court of a trust in connection with which the question arises or the relief is sought.

(2) Without limiting the effect of subrule (1), an action may be brought for the determination of any of the following:

(a) a question that arises in the administration of the estate of a deceased person or in the execution of a trust; or

(b) a question on the composition of a class of persons who have a claim against the estate of a deceased person or a beneficial interest in the estate of the deceased or in any property subject to a trust; or

(c) a question as to the right or interest of a person who claims to be a creditor of the estate of a deceased person or to be entitled to a right or interest under a will or on an intestacy of a deceased person or beneficiary under a trust.

(3) Without limiting the effect of subrule (1), an action may be brought for any of the following reliefs:

(a) an order which requires an executor or administrator to fur­nish and if necessary, verify accounts; or

(b) an order which requires the payment into court of money held by a person in trust in that person's capacity as executor, administrator or trustee; or

(c) an order which directs a person to do or abstain from doing a particular act in that person's capacity as executor, administrator or trustee; or

(d) an order which approves a sale, purchase, compromise or other transaction by a person in the person's capacity as executor, administrator or trustee; or

(e) an order which directs any act to be done in the administra­tion of the estate of a deceased person or in the execution

of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.

Directions by the Court in administration action

 

45. (1) Where in an administration action the Court makes an order for the full administration of the estate of a deceased person or for the execution of a trust, the Court shall give directions as to the manner in which the estate shall be administered or the trust executed.

 

(2) The Order may expressly stipulate that an account or inquiry which is not immediately and manifestly required shall not be taken or made without leave.

 

(3) The Court may stay proceedings under this rule if in its opinion it is not necessary for proceedings to take their full course and may make consequential orders which it thinks fit.

Parties

 

46. (1) The executors or administrators of the estate or the trustee of a trust to which an action in rule 44 relates shall be parties to the action, and where the action is brought by the executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff shall be made a defendant.

 

(2) A person who has a beneficial interest in or a claim against the estate or has a beneficial interest under a trust to which an action mentioned in rule 44 relates need not be a party to the action, but the plaintiff may make any such person that the plaintiff thinks fit a party, having regard to the nature of the relief claimed in the action.

 

(3) Where in proceedings under a judgment or order given or made in an action for administration a claim in respect of a debt or other liability is made against the estate by a person who is a party to the action,

                                        (a) a person who is not an executor or an administrator of the estate is not entitled to appear as a party in relation to the claim without leave of the Court, and

                                       (b) the Court may direct or allow any other party to appear either in addition to or in substitution for the executors or administrators on terms as to costs or otherwise that the Court considers fit.

Limited and Special Grants

 Lost, damaged or unobtainable wills

47. (1) Where an original will or codicil is lost, destroyed or damaged, an application may be made to the Court for an order to admit the will to proof as contained in a copy, draft or any other admissible means of proof.

(2) In making an order under subrule (1), the Court may grant probate until the original will or codicil or a more authentic copy is found and proved.

(3) Where a will cannot be obtained within the jurisdiction because it is in the custody of a foreign Court, or official or a person resident abroad, a duly authenticated copy may be admitted to probate either without limitation or until the original is produced and admitted to probate.

Grant to person with power of attorney

48. (1) Where a person entitled to a grant of letters of administration is resident outside the country, the grant may be made to the attorney of that person as set out in Form 40 in the First Schedule for that person's use and benefit until the person obtains a grant.

(2) Where the person entitled to a grant is an executor, a grant of administration with the will annexed may be made to the attorney of the executor for the use and benefit of the executor until the executor applies for and obtains probate but a grant shall not be made to the attorney unless notice is given to other executors.

(3) The notice shall be left at the last known address of the execu­tor who is to be served or sent to that address by registered post.

(4) A power of attorney under subrule (2) shall be as set out in Form 41 in the First Schedule and shall be executed before a notary public and deposited in the registry of the Court.

(5) A certified English translation of the power of attorney shall be attached to the power of attorney if it is in a language other than English.

(6) The affidavit in support of the attorney's application for the grant shall be accompanied by an office copy of the power of attorney deposited in the court under subrule (4).

Grant for the use of minors

49. (1) Where a person entitled to a grant of probate or letters of administration is a child under the age of eighteen years, a grant shall not be made to the child but to the child's guardian for the child's use and benefit until the child attains full age.

(2) An application by a guardian for a grant for the use and benefit of a child shall be supported by an affidavit, as set out in Form 42 in the First Schedule, and the affidavit shall

(a) depose to the fact that the person entitled to the grant is under the age of eighteen years, and

(b) contain particulars of the estate.

(3) Where a sole executor is a child, the guardian of that child may be granted administration with will annexed until the child attains full age after which a grant of probate may be made to the sole executor.

(4) The Court may make a grant to another person, rather than make a grant to a minor's guardian.

(5) Where one of several executors is a child, probate may be granted to one of the other executors but the right of the child to a grant shall be reserved until the child attains full age.

(6) The right of an executor who is a child to probate when that child attains the age of eighteen years shall not be renounced by another person on the child's behalf.

Persons to whom grants may be made as guardians of children

50. The persons to whom grants may be made as guardians for the use and benefit of a child are:

(a) the child's parents including adopted parents jointly, or

 (b) a guardian appointed by one of the parents to be the testa­mentary guardian to act jointly with the surviving parent, or

(c) a guardian determined by the Court on application by the surviving parent or testamentary guardian where the sur­viving parent objects to the testamentary guardian or the testamentary guardian considers the surviving parent unfit, or

(d) any guardian appointed by a court of competent jurisdiction

where

(1) a child has no testamentary guardian; or

(ii) the original guardian dies or refuses to act; or

 (iii) the child does not have parents or there are no persons with parental rights in relation to that child.

Disability grants

51. (1) Where a person who is entitled to a grant is by reason of mental or physical disability unable to manage that person's affairs, a grant may be made for that person's use and benefit during the period of the disability as provided in subrule 4.

(2) The Court shall not grant probate under subrule (1) unless there is no person entitled in the same degree as the person with disability or the Court determines otherwise.

(3) Where one of several executors is under mental or physical dis­ability the court may grant probate to the others.

(4) The court may grant probate under subrule (1) or (3)

(a) to a person entitled to the residuary estate or probate, or (b) on intestacy, to any person the Court considers fit, where the person has an interest in the estate.

(5) Before a grant is made under subrule (1) or (3), medical evidence of incapacity shall be produced to the satisfaction of the Court.

Incapacity after grant

52. Where a person to whom a grant has been made becomes inca­pable after the grant, the grant shall be revoked and a new grant made on the application of

(a) any person interested in the estate, or

(b) any other person that the Court considers fit.

Grant in respect of person serving prison sentence

53. (1) A grant shall not be made to a person serving a sentence of imprisonment but where a person entitled to a grant is serving a sentence of imprisonment a grant may be made to that person's attorney for that person's use and benefit or the Court may appoint another person as administrator in place of the prisoner.

(2) Where a person to whom a grant has been made is sentenced to a term of imprisonment the grant shall be revoked and the Court may make a grant to that person's attorney or to another person as provided in subrule (1).

Grant limited by the terms of the will

54. (1) Where a testator appoints one person as a general executor and another person for a special purpose both may apply for probate.

       (2) If the application for probate is made by both executors at the same time, one grant shall be made but the powers of the executors shall be distinguished.

(3) If an application is fIrst made by one of the executors, a grant may be made to that executor with the right of the other executor reserved.

Limited by absence

55. Where a personal representative to whom a grant of probate has been made, resides outside the country, the Court may on the applica­tion of a creditor or person interested in the estate of the deceased, make a limited grant until the absent representative returns to the jurisdiction.

Grant for the preservation of the estate

56. (1) The Court on an application for preservation of the estate of a deceased person may make a grant before those entitled to a grant of probate apply.

(2) The application may be made ex parte by a creditor or a person who has an interest in the estate of the deceased.

(3) A grant made under this rule is limited only to the collection and receipt of property that forms part of the estate and the doing of acts that are necessary for the preservation of the property and until a grant is made to the person entitled.

(4) The Court may make a grant under this rule to the Adminis­trator-General on an application by the Administrator-General.

Administration pendente lite

57. (1) After a probate action has commenced, an application may be made to the Court to grant administration pendente lite in accordance with section 80 of the Administration of Estates Act, 1961 (Act 63)

(2) An application under subrule (1) may be made by one of the parties to the suit or by any person interested in the estate.

(3) The parties may agree on the person to be appointed adminis­trator pendente lite, otherwise the Court shall appoint a person that it considers fit

(4) If a person who is appointed administrator pendente lite is connected with the suit, the consent of the parties to the suit shall be sought unless the Court decides otherwise.

(5) A person appointed administrator pendente lite shall submit to the Court,

(a) accounts as set out in Forms 43 and 44 in the First Schedule, for those accounts to be passed at intervals that the Court directs, and

(b) in any case, an account at the end of each year of adminis­tration and on being discharged.

(6) The account to be submitted under subrule (5) shall consist of an inventory of assets in the hands of the administrator pendente lite and a cash account which shall be verified by affidavit and lodged in the registry of the Court.

(7) An administrator pendente lite is entitled to reasonable remu­neration that the Court thinks fit and the remuneration shall be fixed on the taking of accounts.

(8) An administrator pendente lite shall give security in a manner directed by the Court.

(9) The Court, in fixing remuneration under subrule (8), shall take into account the duration and complexity of the administration, the professional skill, business knowledge or other qualification of the administrator pendente lite and the total work done by the administrator pendente lite.

Special grant in respect of unadministered assets (de-bonis non)

58. (1) Where all the persons to whom a grant of probate has been made have died without completing administration and the chain of representation has been broken, a grant with the will annexed shall be made in respect of the unadministrered assets (de-bonis non) to those entitled.

(2) Where all the persons to whom a grant of letters of adminis­tration has been made have died without completing the administration, the Court shall make a grant in respect of the unadministered assets (de-bonis non) to those entitled.

(3) The grant shall be as set out in Form 45 in the First Schedule.

Second grants

59. Where a limited grant is made to one person for the use and benefit of another and that person dies before completing administration, or where the original grant is limited in time or until the happenmg of an event and the time expires or the event occurs, the Court shall make a re-grant to the person that is entitled to the grant.


 

 

 

 

 

 

 

 

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