Ord. 50. SCHEDULE II. Whether it appears to be signed by the Testator, or by some other person in his presence and by his direction, and to be subscribed by two Witnesses according to the enactments relative thereto, and shall not proceed further if the Will does not appear to be so signed and subscribed. Proof of Execution where Attestation Clause defective. Where Will Evidence on Will of Blind or Illiterate Testator. Interlineations, Erasures, If the Will appears to be so signed and subscribed, the Court shall then refer to the Attestation Clause (if any), and consider whether the wording thereof states the Will to have been, in fact, executed in accordance with those enactments. 22. If there is no Attestation Clause, or if the Attestation Clause is insufficient, the Court shall require an Affidavit from at least one of the subscribing Witnesses, if either of them is living, to prove that the Will was, in fact, executed in accordance with those enactments. The Affidavit shall be engrossed and form part of the Probate, so that the Probate may be a complete document on the face of it. 23. If on perusal of the Affidavit it appears that the Will was not, in fact, executed in accordance with those enactments, the Court shall refuse Probate. 24. If both the Subscribing Witnesses are dead, or if from other circumstances such an Affidavit cannot be obtained from either of them, resort for such an Affidavit shall be had to other persons (if any) present at the execution of the Will; but if no such Affidavit. can be obtained, proof shall be required of that fact, and of the handwriting of the Deceased and of the Subscribing Witnesses, and also of any circumstances raising a presumption in favour of the due Execution of the Will. 25. Where the Testator was blind or illiterate, the Court shall not grant Probate of the Will, or Administration with the Will annexed, unless the Court is first satisfied, by proof or by what appears on the face of the Will, that the Will was read over to the Deceased before its execution, or that he had at that time knowledge of its contents. 26. The Court, on being satisfied that the Will was duly executed, shall carefully inspect it to see whether there are any interObliterations. lineations, or alterations, or erasures, or obliterations appearing in it, and requiring to be accounted for. Interlineations, alterations, erasures, and obliterations are invalid unless they existed in the Will at the time of its execution, or unless, if made afterwards, they have been executed and attested in the mode required by the said enactments, or unless they have been made valid by the re-execution of the Will, or by the subsequent execution of some Codicil thereto. Where interlineations, alterations, erasures, or obliterations appear in the Will (unless duly executed or recited in or otherwise identified by the Attestation Clause), an Affidavit, in proof of their having existed in the Will before its execution, shall be filed. If no satisfactory evidence is adduced respecting the time when an erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, and can, on inspection of the Will, be ascertained, they shall form part of the Probate. Where any words have been erased which might have been of SCHEDULE II. importance, an Affidavit shall be required. Ord. 50. 27. Where a Will contains a reference to any document of such Documents a nature as to raise a question whether it ought or ought not to referred to in a Will, form a constituent part of the Will, the Court shall require the production of the document, with a view to ascertain whether or not it is entitled to Probate; and if it is not produced, a satisfactory account of its non-production shall be proved. A document cannot form part of a Will, unless it was in existence at the time when the Will was executed. If there are vestiges of sealing wax or wafers, or other marks on or annexed or the Will, leading to the inference that some document has been at attached. some time annexed or attached thereto, a satisfactory account of them shall be proved, or the production of the document shall be required, and if it is not produced, a satisfactory account of its non-production shall be proved. not appearing. 28. Where a person appointed Executor in a Will survives the Executor Testator, but either dies without having taken Probate, or having dying without been called on by the Court to take Probate, does not appear, his proving, or right in respect of the Executorship wholly ceases; and, without further renunciation, the representation to the Testator and the administration of his property go and may be committed as if that person had not been appointed Executor. 29. Every Will or copy of a Will to which an Executor or an Marking of Administrator with Will annexed is sworn, shall be marked by the Will or Copy Executor or Administrator and by the person before whom he is sworn. 30. The Rules respecting Wills apply equally to Codicils. Sworn to. Codicils. of Persons 31. In every case where evidence is directed or allowed to be Vivâ voce given by Affidavit, the Court may require the personal attendance Examination of the Deponent, if within the jurisdiction, before the Court, or a making Commissioner, to be examined vivâ voce respecting the matter of Affidavits. his Affidavit, and where the application for Probate or Administration is made to a Commissioner, the Court may require the Commissioner to certify the facts found by him upon such examination according to such form as the Court may think necessary. examination may take place before any Affidavit has been sworn or prepared, if the Court thinks fit. 5. Administration (not with Will). The 32. The Court in granting Letters of Administration shall pro- Administraceed as far as may be as in cases of Probate. The Court shall ascertain the time and place of the Deceased's death and the value of the property to be covered by the Administration. tion not with Will annexed. 33. Where Administration is applied for by one or some of the Notice to next of kin only, there being another or other next of kin equally Next of Kin. entitled thereto, the Court shall require proof that notice of the Application has been given to the other next of kin. SCHEDULE II. Ord. 50. Administra tion Bond. Assignment of Bond. Administration Summons. Order for Administration. Orders relative to Property. Administra tion may be granted to 34. The person to whom Administration is granted shall give bond, with two or more responsible Sureties, to the Chief Registrar of the Supreme Court, to enure to the Chief Registrar for the time being conditioned, for duly collecting, getting in, and administering the personal property of the Deceased. Where, however, the property is under the value of fifty pounds, the Court may, if it thinks fit, take one Surety only. The bond shall be in a penalty of double the amount under which the personal estate of the Deceased is sworn, unless the Court in any case thinks it expedient to reduce the amount. The Court may also in any case direct that more bonds than one shall be given, so as to limit the liability of any Surety to such amount as the Court thinks reasonable. 35. The Chief Registrar may, on being satisfied that the condition of the bond has been broken, assign the same to some person, and that person may thereupon sue on the bond in his own name, as if it had been originally given to him instead of the Chief Registrar, and may recover thereon, as Trustee for all persons interested, the full amount recoverable in respect of any breach of the condition of the bond. 6. Administration of Property. 36. A person claiming to be a Creditor or Legatee, or the Next of Kin, or one of the Next of Kin of a Deceased Person, may apply for and obtain a Summons from the Court requiring the Executor or Administrator (as the case may be) of the Deceased to attend before the Court and show cause why an Order for the Administration of the property of the Deceased should not be made. 37. On proof of service of the Summons, or on appearance of the Executor or Administrator, and on proof of all such other things (if any) as the Court may direct, the Court may, if it think fit, make an Order for the administration of the property of the Deceased. The Court shall have full discretionary power to make or refuse any such Order, or to give any special directions respecting the carriage or execution of it, and in the case of applications for such an Order by two or more different persons, or classes of persons, to grant the same to such one or more of the Claimants, or classes of Claimants, as the Court thinks fit. If the Court thinks fit the carriage of the Order may subsequently be given to such person, and on such terms as the Court thinks fit. 38. On making such an Order, or at any time afterwards, the Court may, if it thinks fit, make any further or other Order which may appear requisite to secure the proper collection, recovery, safe keeping, and disposal of the property or any part thereof. 39. In a case of Intestacy, where the peculiar circumstances of the case appear to the Court so to require (for reasons recorded Ord. 50. in the Minutes), the Court may, if it thinks fit, on the applica- SCHEDULE II. tion of any person having interest in the estate of the Deceased, or of its own motion, grant Letters of Administration to an Officer Officer of of the Court. Court. shall act under direc 40. The Officer so appointed shall act under the direction of The Officer the Court, and shall be indemnified thereby. The Court shall require and compel him to file in the Court his tion of the accounts of his Administration at intervals not exceeding three Court. months. appointment 40A. Where a person has died intestate as to his personal Estate Special or leaving a Will affecting personal Estate but without having powers for appointed an Executor thereof willing and competent to take pro- of Adininisbate or where the Executor shall, at the time of the death of such trator. person, be resident out of the Colony, and it shall appear to the Court to be necessary or convenient in any such case to appoint some person to be the Administrator of the personal Estate of the Deceased or of any part thereof, the Court may appoint such person as it shall think fit to be such Administrator upon his giving such security, if any, as the Court shall direct, and every such Administration may be limited as the Court shall think fit. trators. 41. The Court may direct that any Administrator (with or Remuneration without the Will annexed) shall receive out of the personal and of Adminisreal Estate of the Deceased such reasonable remuneration as the Court shall think fit, not exceeding a fee of three pounds, and in addition thereto a sum not exceeding five per cent. on the amount of the realized property, or, when not converted into money, on the value of the property duly administered and accounted for by him Provided that where the Court shall be satisfied that by reason of exceptional circumstances the Administration of any property had required an extraordinary amount of labour to be bestowed on it, the Court may allow in respect of such property a higher rate of remuneration. 7. Administration of the Estates of Public Officials not Natives of Africa. ministrator. 42. Where any person being in the Public Service of the Chief RegisColony, and not being a native of Africa dies within the jurisdic- trar to be Adtion, without leaving within the jurisdiction a Widow or Next of Kin, the Chief Registrar shall be ex officio Administrator of the personal Estate of such Deceased: Provided that the Chief Registrar shall not be bound to take any steps for the Administration of such Estate, until he shall have received notice from the Chief Justice or the Colonial Secretary of the death of such person. tion. 43. The Administration of such Estate by the Chief Registrar Limits of shall be limited to the getting in and realizing the assets of the AdministraDeceased within the jurisdiction, and to the payment of his funeral and testamentary expenses and debts within the jurisdiction, and to the payment of the balance into the Colonial Treasury to the credit of the Legal personal representative of the Deceased. SCHEDULE II. assist in the Administra tion. 44. The Commissioner of any district other than Lagos in which any such deceased has left any personal property shall of his own District Com- motion forthwith on the death of the deceased take steps under missioners to Rule 2 of this Order to secure such property. The Chief Registrar may request such Commissioner to get in and realize the assets, and pay the debts of such deceased in such district, and in other respects to assist in the administration and may apply to the Court (if necessary) for a direction to such Commissioner to such effect. 45. Any watch, jewellery, letters or other property which in the articles to be opinion of the Chief Registrar ought not to be sold, he shall cause to be securely packed and forwarded to the Collector of Customs for transmission to the Crown Agents for the Colonies. The Chief Registrar shall give notice to the Colonial Secretary that this has been done and shall request the Colonial Secretary to notify the Crown Agents that such articles have been despatched for delivery to the Legal personal representative of the deceased. Certain transmitted to Crown Moneys received by Administra tor to be paid into Government Savings Bank. Accounts to be filed, &c. Accounts may be passed before com pletion of the Administration. Registrar Court. 46. The Chief Registrar shall pay all moneys from time to time received by him in the course of such administration into the Government Savings Bank to the account of the estate of the deceased, and for the purposes of such administration may draw out money so deposited in the same manner as any other depositor: Provided that it shall be lawful for the Chief Registrar to retain in his custody a sum not exceeding five pounds for the current expenses of such administration. 47. Upon the completion of any such administration the Chief Registrar shall file in Court his accounts and the vouchers relating to the same together with an affidavit in verification. As soon as the Court shall have passed such accounts the net balance due to the estate shall be lodged with the Treasurer with a direction from the Court to pay the same to the Crown Agents on behalf of the Legal personal representative of the deceased. The Chief Registrar shall thereupon send to the Colonial Secretary a request that the Crown Agents be instructed to pay the said balance to the Legal personal representative of the deceased, and shall at the same time transmit to the Colonial Secretary an office copy of the accounts passed by the Court, of the vouchers relating thereto, of the affidavit in verification and of the direction to the Treasurer. 48. The Chief Registrar may by leave of the Court and subject to such terms as to the future administration of the estate as the Court may deem just pass any accounts prior to the completion of the administration. In any such case the procedure prescribed in the last preceding rule shall be followed as to any balance shown to be due to the estate by such accounts, but the Colonial Secretary in addition shall be notified that the administration has not been completed. 49. The Chief Registrar may at any time apply to the Court for may apply to direction respecting the administration of any estate as aforesaid. 50. On the completion of any administration as aforesaid in which more than one Officer of the Court has assisted the Court shall direct in what proportion any remuneration to be allowed under Rule 41 shall be distributed. Remunera tion. |