Applying for Probate and Letters of Administration

Introduction:

This note will discuss the processes involved in applying for probate or letters of administration. In doing so, the note will examine the essence of applying for probate and letters of administration, the court with the jurisdiction to entertain and grant such an application, the order of priority in granting probate or letters of administration, and how to apply for probate or letters of administration.

Essence of Applying for Probate or Letters of Administration:

In Section 61 of Administration of Estates Act 1961 (Act 63) it is provided that:

A grant of probate is necessary to entitle an executor to administer the property, whether movable or immovable, of the testator. Before probate, the executor may, for the benefit of the estate, exercise the functions which pertain to his office but he shall not be entitled to make a disposition of any property.

This provision places limits on the way an executor can deal with property prior to being granted probate if the deceased died testate.

If the deceased died intestate, Section 17 of the Intestate Succession Law, 1985 (P.N.D.C.L. 111) , will apply. It provides that:

A person who before the distribution of the estate of a deceased person whether testate or intestate…removes, destroys or otherwise unlawfully interferes with the property of the deceased person, commits an offence and is liable on summary conviction to a minimum fine of two and a half penalty units and not exceeding two hundred and fifty penalty units or to a term of imprisonment not exceeding one year, and the Court or tribunal shall make any other orders that it considers necessary for the re-instatement of or reimbursement to the person thus ejected or deprive.

This provision, per the Supreme Court case of Republic v. High Court (Commercial Div), Accra: Ex parte Brobbey [2023] GHASC 11 (1 February 2023) , creates the offence of intermeddling. They made this pronouncement in the process of declaring part of Order 66, Rules 3 and 4 of the High Court (Civil Procedure) Rules, 2004 C.I. 47 , which creates the offence of intermeddling void for being contrary to Article 88 of the 1992 Constitution, which empowers the Attorney General to be the entity in charge of initiating and conducting the prosecution of all criminal offences. In that case, their lordships advanced that the rules of court committee acted in excess of their power to create rules and regulations for regulating the practice and procedure in all courts in Ghana when they created the offence of intermeddling under C.I. 47.

Despite the decision in Republic v. High Court (Commercial Div), Accra: Ex parte Brobbey (supra) , it is essential to note that under Order 66 Rules 3 and 4 , a person who interferes with property without being granted probate or letters of administration still faces the following:

1. Liabilities of an executor or administration
2. Where the person is an executor, he may be liable for contempt of court [the court did not make a pronouncement on this]. The plaintiff in that case advanced that contempt can be exempted because it is quasi-criminal in nature and can be initiated by civil proceedings.

To avoid these liabilities and have full control to administer the estate of a deceased, it is important to apply for probate or letters of administration.

Court with Jurisdiction to Entertain an Application for Probate and Letters of Administration:

In Order 66 Rule 1(1) of C.I. 47, it is provided that:

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 where the deceased had at the time of death a fixed place of abode.

This provision represents the general rule on jurisdiction.

Subrules 2 and 3, respectively, make further provisions for when the deceased has no fixed place of abode or when he has properties in areas within the jurisdiction of more than one court.

In subrule 2, it is provided that if a person dies without a fixed place of abode in the country, the court in the area where any of his properties may be found has jurisdiction for the purpose of granting probate or letters of administration.

In subrule 3, it is provided that if the deceased has properties within the jurisdiction of more than one court, an application for probate can and should be made to only one of the courts.

Persons who can be Granted Probate

C.I. 47 provides a list of persons that can be granted probate. This list is organised in order of priority, such that the higher a person is on the list, the more likely they will be granted probate. Order 66 Rule 12 provides the following list in order of priority:

1. The executor: This is the person named in the will by the deceased person to administer his estate upon his death. If there is no executor, the persons named in ii will be granted probate or letters of administration.
2. Any specific legatee, devisee, creditor, or the personal representatives of these three classes of persons. A legatee is a person to whom the testator gifts money or personal property. A devisee is a person who receives immovable property (real estate) under a will.
3. Any legatee or devisee whether residuary or specific who claims to be entitled on the happening of any contingency;
4. Any residuary legatee or devisee holding in trust for any other person;
5. The ultimate residuary legatee or devisee where the residue is not disposed of by the will; or
6. Any 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.

Persons who can be Granted Letters of Administration:

Where a person dies without a valid will, Order 66 Rule 13 provides the following priority list:

1. Any surviving spouse.
2. Any surviving children.
3. Any surviving parent.
4. The Customary successor of the deceased.

If a person that is higher on the list fails to or refuses to take probate, Rule 15 allows a person who is lower on the list to serve a notice on the one higher to take a grant of probate or letters of administration, or renounce the right.

How To Apply for Grant of Probate or Letters of Administration:

An application for probate or letters of administration is done by originating motion ex parte. Below is a sample:

Per Order 66 Rule 8,

i. The application is supported by the affidavit sworn by the applicant. Rule 9 provides that the court may require evidence of he identity of the applicant if it deems it necessary or desirable to have such identity. It is thus recommended that the affidavit contain this information. The affidavit may also contain the place and time of death of the deceased, his place of abode for the purposes of determining if the court has jurisdiction, among others.

ii. The application is accompanied by such documents as the court may require.

What the Court Does After an Application for Probate and Letters of Administration:

In an action for the grant of probate or letters of administration, the court may either make the grant or refuse to do so.

If the court decides to make a grant, Order 66 Rule 10 provides for giving notice of the grant before actually issuing or giving the grant to the applicant. Thus, if the court decides to grant probate or letters of administration, it does not immediately issue the grant to the applicant but must issue a notice stating that the court has made a grant to the applicants. This notice is to be given for a period of not less than twenty-one days. The notice shall be given in the following manner:

i. In the court where the application was made.

ii. In any public place within the jurisdiction of the court where it is likely that the notice will be seen by those who may have an interest in the estate.

iii. At the last known place of abode of the deceased in respect of whose estate the grant has been made.

If the deceased died intestate, the rule provides that notice of the grant must be given to all persons who are entitled to a share of the estate of the deceased under the Intestate Succession Law, 1985 (P.N.D.C. Law 111). However, the court may dispense with this if it considers it expedient to do so.

Beyond the notice, the rule requires that the court should not issue the grant of probate or letters of administration until all enquiries which it sees fit to make have been answered to its satisfaction.