Proof of Wills

Introduction:

This note will discuss the meaning of proof of will, circumstances under which a will ought to be proved, the effect of failing to prove a will when the circumstance arises, and how a will is proved.

Meaning of Proof of Will:

This is a procedure by which the executors that are named in a will are required to prove the validity of the will. Among others, they must establish in the mind of the court that the will was duly executed by the testator, duly attested and witnessed, and duly signed.

Circumstances Under Which a Will Ought to be Proved:

Per Order 66 Rule 7 and Rule 26(2) of the High Court Civil Procedure Rules, 2004 (CI 47) , a will ought to be proved under the following circumstances:

i. When the court, of its own motion, give notice to the executors to come in and prove the will.

ii. When there is an application by any person who claims an interest under the will.

Effect of Failing to Prove Will:

If the executors fail to prove the will upon being requested to do so, they must renounce probate, per Order 66 Rule 7. To renounce probate means to decline to accept the role and responsibilities of administering the estate of the deceased.

In said Order 66 Rule 7(2), once the executors receive the notice to come in and prove the will, they have fourteen days after the receipt to come in and prove the will or renounce probate.

How a Will is Proved:

In establishing whether a will is valid, the validity of the will may or may not be challenged. Thus, it is possible for all parties and persons to have no objection as to the validity of the will, but it is also possible for one or more parties to advance that a particular document purporting to be the will of a deceased, is not.

Based on whether the validity of the will has been challenged or not, there are two ways of proving a will’s validity:

1. Proof of will in common form.

2. Proof of will in solemn form.

These are now explained:

1. Proof of Will in Common Form:

Order 66 Rule 25 governs proof of will in common form. It reads:

Where a will appears regular on the face of it and there is no dispute as to its validity, the application for probate may be sufficiently supported by affidavit deposing to the due execution and attestation of the will and by such other documents or papers as the Court may require.

Summarily, this method of proving the validity of a will is adopted when the will appears regular on its face and there is no one arguing or claiming that the will is invalid. Once these conditions are fulfilled, the executor only needs to swear an affidavit deposing to the fact that the will was duly executed.

2. Proof of Will in Solemn Form:

Order 66 Rule 26 provides for proof of will in solemn form. It reads:

(1) Where for any reason the executors of a will are in doubt as to its validity or the validity of the will is disputed, the executors may if they consider it necessary to do so , prove the will in solemn form in an action commenced by writ asking the Court to pronounce the will as valid .

Summarily , if the executors themselves have doubts as to the validity of a will, they may issue a writ asking the court to pronounce the writ valid. If this is done, and the will is proved to be valid in said action, the will be said to have been proved in solemn form. Notice the discretion here with the use of “may” and consideration of the necessity to do so.

If, however, it is not the executors that have doubts as to the validity of the will, and it is any other person who claims an interest under the will, the discretion is removed and the executors must prove the will in solemn form (thus by an action commenced by a writ, asking the court to pronounce the will valid). This is provided in Subrules 2 to 5 of rule 26, which read:

(2) Any person who claims to have an interest in the estate of a deceased person may by notice in writing request the executors named in the will of the deceased to prove the will in solemn form.

(3) The notice required to be given under subrule (2) shall state

(a) the name, address, and description of the person filing it;

(b) the interest the person has in the estate of the deceased; and

(c) the specific grounds upon which the validity of the will is disputed.

(4) The notice must be signed by the person who desires proof in solemn form or by the person's lawyer and shall be filed in the registry and served on all executors named in the will and the beneficiaries under the will.

(5) Where a notice is served on an executor under subrule (4) the executor shall not later than 8 days after the service, file in the registry an answer to the notice stating the intention of the executor either to prove the will in solemn form or to renounce probate and the Registrar shall upon receiving such answer serve the person who files the notice with a copy of the answer.

Notice that in subrule 5, the executor is mandated to file an answer to the notice stating his intention to prove the will in solemn form. Thus, there is no discretion here. Without the filing of such an answer, the effect is that the executor will renounce probate.

In Rule 27 of Order 66, it is further provided that once the executor files the answer referred to in subrule 5, he must, not later than eight days after filing the answer, “issue a writ claiming that the will must be pronounced valid and admitted to probate.” The writ is issued against the person who issued the notice challenging the validity of the will.

Upon the failure of the executor to do this, the person who issued the notice may again apply to the court for an order that the right of the executor to the executorship must cease. The court may either grant this application or make an order extending the time within which the executor must issue the writ.