A grant of probate or letters of administration is necessary for one called personal representative to commence the distribution of the estate of a deceased person. Pending the grant of probate, an executor may, in the interest of the estate, perform the functions of the office but may not dispose of any property forming part of the estate. A deceased who made a Will is said to have died testate. He should normally have the persons called executors, who would distribute his estate. Where he had no executors or where for one reason or the other the executors renounce probate grant of letters of administration with will annexed may be made to a person called administrator. Administrators are appointed for persons who die without making a Will. Such persons are said to have died intestate. Where a grant of administration with will annexed is made, the provisions of the will must be observed as if the will were probated.
The Administration of Estates Act 1961 (Act 63) and Order 66 of the High Court Civil Procedure Rules [C.I 47] regulate the application for Probate or Letters of Administration. 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 however where the deceased has property within the jurisdiction of more than one court, the application shall be made to only one of the courts in respect of all the properties.
Where the deceased had no fixed place of abode in Ghana, the court having jurisdiction where any movable or immovable property of the deceased is situated may grant representation. The only requirement under this is for a notice of the application to be given to the registrar of every court with jurisdiction in the areas where the property may be found. Any objections to the grant of representation, which is called Caveat, filed in any of the courts where the deceased has property shall be brought to the notice of the court before which the application is pending. That court may then stay the hearing of the application until it is satisfied that no caveat has been filed in another court.
APPLICATION
In Re Walton (Dec’d), Walton v Walton [1991] GLR 165; it was held that an application for representation may be made by all, some or any of the executors without notice to the others but in making the grant to one or some executors, the court would reserve to the others the right to apply to be joined in the grant. Every application for grant of probate or letters of administration shall be supported by
- an affidavit sworn by the applicant
- an affidavit sworn by the Family Head
- an oath for Executor (Probate only)
- Declaration of movable and immovable Property of a testator or an intestate
- Attestation signed by Witnesses in accordance with Order 66 Rule 18(5) of the C.I. 47 (Applicable to Probate only)
- with such other documents as the Court may require.
WHO CAN APPLY
Where a person dies leaving a will, the person entitled to grant of probate or letters of administration with the will annexed shall be determined in accordance with the following order of priority;
(a) the executor;
(b) any specific legatee or devisee or any creditor or the personal representative of any such person, provided that administration shall be given to a living person in preference to the personal representative of such a deceased person who would, if living be entitled in the same degree;
(c) any legatee or devisee whether residuary or specific who claims to be entitled on the happening of any contingency;
(d) any residuary legatee or devisee holding in trust for any other person;
(e) the ultimate residuary legatee or devisee where the residue is not disposed of by the will; or
(f) 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.
Where a person dies intestate on or after 14th June 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority;
- any surviving spouse; (b) any surviving children; (c) any surviving parents; (d) the customary successor of the deceased
REQUIREMENTS
On an application for the grant of probate or letters of administration;
- the Court may require evidence of the identity of the applicant in addition to that provided by the applicant, where such additional evidence seems necessary or desirable.
- 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.
- The applicant shall make a declaration of the value of the property of the deceased and the Court shall as correctly as the circumstances allow ascertain the value. The court held in the case of Re Kukebah (Dec’d), Commissioner, CHRAJ v. Asumina [2001-2002] 1 GLR 515, that the inventory of the deceased property is mandatory for the application.
- The court may require further evidence of the identity of the applicant in addition to that provided in the application.
PUBLICATION
The Court shall not allow any grant of letters of administration to issue unless after the grant, notice of it is given for a period of not less than twenty-one days, or such other period as the Court may order in the following manner
(a) in the Court where the application for grant was made;
(b) 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; and
(c) at the last known place of abode of the deceased in respect of whose estate the grant has been made.
In a grant upon intestacy, as many beneficiaries as practicable under the Intestate Succession Act 1985 (PNDCL 111) must be notified unless the court otherwise directs. A grant of probate is not required to be published because the executor is entitled, before the grant of probate, to perform the functions pertaining to the office without disposition of property. A grant of probate is however required to administer the properties of the testator. The court held in Republic v. High Court, Accra, ex parte Abban [1992] 1 GLR 442, SC that it may dispense with the requirement of publication.
