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Reflecting on probate practice, administration of estates in Nigeria

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Learning, they say, is a continuous exercise. This time around, the Nigerian Bar Association (NBA), Ibadan Branch Continuing Legal Education Quarterly Seminar Series presents the unique opportunity for a discourse at the Aare Afe Babalola Bar Centre, Ibadan, Oyo State. The lead paper titled, “The Law and Practice of Wills Probate and Administration of Estates”, was delivered by Prof. Babatunde Oni of the Department of Private and Property Law, University of Lagos, Akoka, Lagos State. Prof. Oni’s paper addressed a number of salient issues that is worth sharing after attending the seminar. According to the don, due to some problems, which are usually encountered in the distribution of estates and hence, estate planning is beginning to get more attention in many climes.

He stressed that the inevitability of death and retirement as a result of old age makes it mandatory for a person to leave a good estate plan to avoid acrimony often associated with improper estate planning. The guest speaker disclosed that one of the fundamental objectives of estate planning is for the protection of the family. Simply put, the main objectives of estate planning are to tidy up one’s affairs, provide support for one’s spouse and children, minimise the cost of payable estate taxes, and to transfer property to one’s heirs and legatees in terms of devolving a plan detailing one’s wishes as to the use and distribution of his wealth, preparing for future illness, disability or retirement, transferring property to intended beneficiaries rather than unintended beneficiaries both before and after death, and providing for guardianship of minor children upon death or incapacity, among other benefits.

On the other hand, a trust can be defined as an equitable obligation binding a person, who is called the trustee, to deal with property over which he has control, which is called trust property for the benefit of persons, who are called beneficiaries or cestui que trust, held in a fiduciary by one party for the benefit of another, as the assets are kept in custody of the trustees, who are known for their reliability, integrity, and faithfulness. The Professor identified some of the problems facing estate planning through trust in Nigeria to include finding a suitable person to act as trustee, perfecting of a trust, and heavy cost of administration. The guest speaker observed that challenges facing corporate trustees in estate planning to cover financial crimes and confidentiality, and conflict in management and administration of trust.

He stated further that probate practice has to do with the procedure of administration of the estate of the deceased after his death in terms of the procedure used for the grant of probate and letters of administration while applications for probate or letters of administration are made to the probate registry. However, controversies may arise in along the line. For instance, where two or more persons are entitled in the same degree to probate, the registrar may validly grant probate to the other person without notice to the other persons entitled in the same degree, saying this is recipe for disputations where there are, and when two or more executors are appointed in a will and only one person applies for probate, the grant may be resisted by other executors that are excluded from the grant. He examined the provisions of the law under such complex situations, what is safe to do is to be fair to all parties to prevent the truncation of the process of grant of probate by persons, who are equally entitled to the grant like the applicant and to someone that has prior right to the grant.

Prof. Oni, who is also the Principal Partner, Babatunde Oni & Co, admitted that the administration of estate, either through probate or letter of administration, is a technical one that requires expertise that is laden with problems including those about death certificates; influence of customary succession in the grant of probate and letter of administration; conflicts among the executors, administrators and beneficiaries; surviving spouse and spouses problem; delays in obtaining letter of administration and probate or manual filling; and matters pertaining to next-of-kin, among others deserve paying proper attention to.

The legal luminary recommended that most of the identified problems can be tackled through and not limited to the practice of trust intervivos and gift intervivos, introduction of a digital and electronic filing system to eliminate manual processing of files at the probate registry, digitalised archives for storage of wills and letters of administration, adequate training of probate registry staff, introduction of Alternative Dispute Resolution (ADR) mechanism into the administration of estates law, and consideration of appeal on abandoned or pending applications, as well as allowing for instalmental payment of estate duties. In the final analysis and in addition to what the Professor has richly elaborated with appropriate legal authorities, the bitter truth is that death. Therefore, it is always better to plan ahead bearing in mind that writing of wills in never a death sentence, but a necessary task in the journey of man in life.