Process for contentious Grant of Probate
This article will use some technical legal terms, and so it is important that you understand the meanings of the terms, where possible we will try to use plain English so as not to confuse you.
Testator – a person who has written and executed a last will and testament that is in effect at the time of his/her death.
Caveat – is an application entered at the Probate Registry to prevent the issue of a Grant of Probate
Caveator – an individual who has issued a caveat
Propounder – the person who brought forward the Will for the grant of probate
When an application has been made for the grant of probate, the Registrar waits a certain number of months (three months in Lagos) for any caveats to be filed against the grant of the probate. Where a caveat is filed then the process becomes contentious and this process is then known as a solemn form grant of probate. It is the issuance of caveat that determines whether probate will be granted in solemn form. To read the process for when there is no objection to a grant of probate, please read this article here – How to get Probate.
There are four instances where a caveat ceases to be effective:
- Where the caveator fails to enter appearance to a warning or citation within the prescribed number of days
- A caveat becomes ineffective by effluxion of time after 3months (Lagos) unless it is renewed by the filing of further caveats
- Where, to the knowledge of the caveator, there is a pending matter in court concerning the Will and the caveator still goes ahead to file a caveat. Such a caveat is ineffective
- Where the caveator withdraws his caveat.
The stages for the grant of probate will now be discussed.
Stage 1 – Caveat
- Caveat is issued to challenge an application for grant of probate. An application for grant of probate becomes contentious when a caveat is filed against the application. A caveat has the life span of 3 months in Lagos and probate should not be issued or granted while caveat is still in force unless withdrawn or discharged.
- All the other details are basically the same with the procedure in common form which is discussed here except for few additions.
- When a caveat is filed, it is to be served on the applicants to probate. The applicants are to issue a WARNING or CITATION against the caveator. The citation being served on the caveator is to ask the caveator to state his interest and claim under the will.
- A caveator is to enter appearance within 8 days of service of the citation on him. A caveator may however decide not to enter appearance and withdraw his caveat.
Stage 2 – Hearing of Validity of Will
Once an appearance has been entered, the hearing would then take place. Until the matter is fully heard, probate would not be granted to the applicant.
The caveator shall enter an appearance and disclose the nature of the contrary interests he/she has in the testator’s estate and why he/she desires that probate should not be granted to the applicant. Usually, a verifying affidavit is attached to the form to state the nature of the contrary interests. A caveator who has not entered an appearance may withdraw his caveat by giving notice of the withdrawal to the probate registrar.
Where there is an appearance to the citation, the dispute will be resolved in court. Where the Will is referred to the court to be proved, the propounder shall have the burden of establishing its due execution or validity or that the testator had knowledge of its content and approved it. Pending the determination of the case, the court may grant temporary administration or limited grants pendente lite to preserve the estate.
At the conclusion of the probate trial, the Probate Registrar may or may not grant probate depending on the outcome of the action. If the court pronounces for the Will, the registrar would grant probate.
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We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. Therefore, no lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer.