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.
