Powers and Duties of the Court with Jurisdiction to Grant Probate or Letters of Administration:

Introduction:

This note will discuss some of the powers and duties of the court in relation to probate and letters of administration. The powers to be discussed are the powers to make preservation orders during the pendency of an application for grant of probate or letters of administration, order for production of testamentary papers, and order that the validity of the will be proved. The note will also highlight the court’s duty to ascertain the death of the person whose estate is being sought to be administered by a grant of probate or letters of administration.

1. Powers to Make Preservation Orders During Pendency of Application:

In Order 66 Rule 2(1) of the High Court Civil Procedure Rules, 2004 (CI 47), it is provided that:

The Court to which an application is made under rule 1 of this Order may, for the preservation of the property of the deceased within its jurisdiction or for the discovery or preservation of the will of the deceased, take such interim measures as it considers necessary.

Here, the measures are not expressly specified; only the purposes to be served by those measures are specified. These are:

i. Preservation of the property of the deceased. In achieving this, Subrule 2 of Rule 2 allows the court to appoint any person to take possession of the property of the deceased.

ii. Discovery of the will of the deceased.

iii. Preservation of the will of the deceased.

2. Power to Make an Order for Production of Testamentary Papers:

In Order 66 Rule 5, it is provided that:

Where it appears to the Court that any paper of the deceased being or purporting to be testamentary, is in the possession or under the control of any person, the Court may, whether any proceedings relating to probate or administration are pending, order the person to produce the paper in court.

Rule 6 further provides for the court to order an examination of any person who may have knowledge of any paper purporting to be testamentary.

Note that these powers exist even if there is no pending application for grant of probate or letters of administration.

3. Give Notice to Executors to Come in and Prove a Will

In Order 66 Rule 7, it is provided that:

(1) The Court may of its own motion or on the application of any person who claims an interest under a will give notice to the executors, if any, named in the will to come in and prove the will or renounce probate.

(2) The executors or any one 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 in and prove the will or renounce as required by subrule (2), the right of the executor to executorship shall be extinguished and an application for letters of administration with will annexed may be made by any person entitled to that.

Here, it should be noted that the court can suo moto require a will to be proved by the executors. In addition, any person that claims an interest under a will, such as a legatee or devisee, can give notice to the executors to prove the validity of the will. This will be discussed more in a subsequent note.

4. Duty to Ascertain Time and Place of Death and Require Proof of Death:

Rule 9(2)provides that on application for probate or letters of administration, the court:

shall ascertain the time and place of the death of the deceased and require proof of death by production of a death or burial certificate or such other evidence to the satisfaction of the Court.

Conclusion:

The powers and duties of the court as discussed here are not exhaustive. They only highlight areas of interest.