Introduction

A Grant of Probate and Letters of Administration are court-issued documents that empower the personal representatives of a deceased person to manage the deceased person’s estate. Probate is granted when the person dies testate (with a will), while a Letter of Administration is issued when the person dies intestate (without a will). Once granted, the deceased’s personal representatives are authorised to administer the assets of the deceased only within the jurisdiction of the state where the grant was issued.

While the exercise of the authority granted to the deceased’s personal representatives under the probate is limited to assets within that specific jurisdiction where it was issued, there are situations where it may become necessary to extend the authority of the personal representatives beyond that jurisdiction to enable them manage any assets which the deceased may have in other jurisdictions/states.  The process of extending the scope of this authority is called resealing.

In this article, we have highlighted the laws providing for the resealing of grant of probate and the procedure for obtaining same.

When is a Resealing of Grant of Probate Needed?

As previously stated, probate is granted with respect to the properties within the jurisdiction or state where it was granted. Therefore, where the personal representatives/executors wish to administer other properties which belonged to the deceased outside the state, then a resealing of the probate is required. For example, if a grant of probate is obtained in Lagos and the deceased had property in Ogun, the personal representatives must apply for the grant to be resealed in Ogun to administer those assets. Likewise, if a grant was obtained in a foreign country and the deceased has property in Lagos state, Nigeria, an application for resealing must be made in Lagos state for the asset to be administered by the personal representatives.

What are the Laws Relating to Resealing of Probate?

The Probate (Resealing) Act, 1966 (the “Act”) and the State High Court (Civil Procedure) Rules (“HCCP Rules”) as applicable in different states make provisions for the resealing of probates and letters of administration. Section 7(1) of the Act empowers the Chief Judge of the state to make rules of court to regulate the procedure and practice of resealing. Hence resealing of grant of probate and letters of administration is the responsibility of the probate registry of the state high court of each state, which is discharged in line with the HCCP Rules.

It is pertinent to note that in the case of a foreign grant, the Act specifically provides for the resealing of grants made in a commonwealth country. As such, foreign grants obtained in countries that are not part of the commonwealth[1] may not be eligible for resealing in Nigeria.

Who Can Apply for Resealing?

The personal representatives of the deceased to whom an initial grant of probate or letters of administration have been made or any person authorised by them in writing can submit an application to the probate registry of the high court of the state where the asset is located for resealing.[2]

Where the initial grant is made to more than one person (multiple grantees), all grantees must apply jointly for the resealing. If they fail to do so because of a disagreement among them, the resealing will not be granted unless the court issues an order to exclude any of the grantees.

Procedure for Resealing

1. An application for resealing must be submitted to the probate registry of the high court of the state where the assets are located. This application shall be supported by an oath sworn by them, a tax clearance certificate[3] and a copy of the initial grant[4]. Other documents required by the Lagos State probate registry include:
   • Photocopy of means of identification of each applicant
   • Photocopy of the deceased’s death certificate or affidavit of loss of death certificate
   • A passport of the deceased
   • Two passports of the personal representative.
2. Upon receipt of the application, the Probate Registrar will issue the relevant forms to be completed and returned by the applicants. These include:
   • Application form for re-sealing
   • Oath for re-sealing
   • Bank certificate
   • Inventory
   • Particulars of landed properties
   • Bond for re-sealing
   • Justification for sureties, where necessary
3. The application for resealing is then advertised in a widely circulated national newspaper to allow any interested parties or creditors to enter a caveat challenging the resealing.
4. In the absence of a caveat (objection to the grant) and upon the payment of probate duty and provision of security, the grant will be resealed. Section 3 of the Act prescribes that the payment of probate duty and provision of security are prerequisites for resealing. Probate duty is a tax levied on the deceased’s estate before it can be administered by the personal representatives, while security refers to a deposit or bond that must be sufficient to cover the value of the estate. The provision of security is required when letters of administration are issued.
5. A notice of resealing will also be sent by the registry to the court where the original grant was issued, which, in turn, will notify the registry of any amendment or revocation of the original grant.

Conclusion

Resealing of probate or letters of administration is an important process in the administration of the estate of a deceased person with assets across multiple jurisdictions. Once a grant is resealed in a state, it shall have the same effect and operation in the state as if it was originally granted by the state, conferring on the personal representatives the authority to deal with any assets in the state.

[1] The Commonwealth of Nations is an association of 56 independent countries, the majority of which were former British colonies. Its members include Angola, Antigua and Barbuda, Australia, The Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei, Cameroon, Canada, Cyprus, Dominica, Fiji, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta, Mauritius, Mozambique, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Tanzania, Togo, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom, Vanuatu, Zambia, and Zimbabwe.

[2] Lagos State High Court (Civil Procedure) Rule, 2019, Order 63 Rule 25 (1)

[3] Ibid, Order 63 Rule 25 (2)

[4] Ibid, Order 63 Rule 6