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Wills and Administration of Testate Estates (Probate) Rules, 2023

Statutory Instrument 37 of 2023

Wills and Administration of Testate Estates (Probate) Rules, 2023
Citation
Statutory Instrument 37 of 2023
Primary work
Wills and Administration of Testate Estates Act, 1989
Date
1 September 2023
Language
English
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Wills and Administration of Testate Estates Act, 1989

Wills and Administration of Testate Estates (Probate) Rules, 2023

Statutory Instrument 37 of 2023

IN EXERCISE of the powers contained in section 68 of the Wills and Administration of Testate Estates Act, the following Rules are made:

Part I – Preliminary

1. Title

These Rules may be cited as the Wills and Administration of Testate Estates (Probate) Rules, 2023.

2. Interpretation

In these Rules, unless the context otherwise requires—“applicant” means a person who makes or has made an application for a grant of probate or other relief under the Act or these Rules;“Assistant Registrar” means the Assistant Registrar of the Judiciary appointed under section 7 of the Judiciary Administration Act, 2016, and designated to perform the functions under rule 5;[Act No. 26 of 2016]“citor” means a person who seeks the issuance of a citation under Part IV of these Rules;“certified copy” means a copy of a document or record, signed and certified as a true copy of the original by the commissioner for oaths;“District Registry” means a registry within a district for the purposes of testate proceedings and includes a place at which sittings of the High Court are authorised to be held outside Lusaka;“executor” has the meaning assigned to the word in the Act;“grant” means a grant of probate or letters of administration with a will annexed;“personal representative” means a person to whom a grant has been made and is still subsisting;“practitioner” has the meaning assigned to the word in the Legal Practitioners Act;[Cap. 30]“Registrar” means the Registrar of the Family and Children’s Division of the High Court appointed under section 7 of the Judiciary Administration Act, 2016 and includes a District Registrar;[Act No. 26 of 2016]“Registry” means the Family and Children’s Division Registry of the High Court and includes a District Registry;“testator” has the meaning assigned to the word in the Act; and“will” has the meaning assigned to the word in the Act.

3. Application

(1)Subject to these Rules and any other law, the Probates (Resealing) Rules and the High Court Rules shall apply to the commencement of proceedings and to the practice and procedure in testate proceedings pending in the court.[Cap. 61; Cap. 27]
(2)Subject to the Constitution, where there is any inconsistency between these Rules and any other Rules relating to testate proceedings, these Rules shall prevail to the extent of the inconsistency.[Cap. 1]

Part II – Registry

4. Registry

(1)The Chief Justice may establish a Registry at a place that the Chief Justice considers necessary for the purpose of these Rules.
(2)The Registrar shall be responsible for the administration of the Registry.

5. Functions of Registrar

(1)The Registrar shall keep and maintain a register of each application for a grant filed in the Registry.
(2)The register referred to under sub-rule (1) shall specify the—
(a)full names of the deceased;
(b)title of proceedings;
(c)address of the deceased;
(d)date of death;
(e)place of death; and
(f)domicile at date of death.
(3)The Registrar shall keep the original written will from which a grant is issued in the depository referred to under rule 6.
(4)The register shall be open for public inspection during normal working hours on payment of a fee set out in the High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021.[S.I. No. 91 of 2021]
(5)The Registrar may delegate the functions under this rule to the Assistant Registrar.

6. Depository for wills of testator

(1)The Registrar shall provide a safe and convenient depository for the custody of a will at the Registry.
(2)A testator or a testator’s practitioner who intends to deposit a will in the depository specified under sub-rule (1) shall seal the will and, on payment of a fee set out in the High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021, file the will together with a docket in Form I set out in the Schedule.[S.I. No. 91 of 2021]
(3)A will deposited under sub-rule (1) may be withdrawn by the testator or the testator=s practitioner on payment of a fee set out in the High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021 and on production of satisfactory evidence that the will was deposited by that testator or that testator=s practitioner.[S.I. No. 91 of 2021]
(4)The Registrar shall, on proof of the death of a testator, supply a copy of the will to the executor or another person that the Registrar may determine to be entitled to the will.

Part III – Application for grant

7. Application for grant

(1)A person may, within a period of twelve months of the death of a testator, apply for a grant by filing originating summons and an affidavit in support of the application.
(2)An application for a grant under sub-rule (1), may be made in person or through a practitioner.
(3)Where an application for a grant is not made within the time specified under sub-rule (1), the application shall be made with leave of court.
(4)An applicant shall publish the application made under sub rule (1) in a daily newspaper of general circulation in the Republic inviting objections to be made within fourteen days from the date of the publication.

8. Documents to be filed by applicant

(1)An applicant under rule 7 shall file a lodgement schedule in Form II set out in Schedule on payment of a fee set out in the High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021.
(2)An application in sub-rule (1) shall be accompanied by—
(a)an affidavit in support of the application containing certified copies of the certificate of death or any other authentic document to prove the death of a testator, national registration card or any other authentic document to identify the deceased and a copy of the will;
(b)an executor’s oath in Form III set out in the Schedule;
(c)an administration bond in Form IV set out in the Schedule;
(d)a declaration of the deceased’s estate in Form V set out in the Schedule; and
(e)a fee sheet in Form VI set out in the Schedule.
[S.I. No. 91 of 2021]

9. Joinder of executor to application for grant of probate

(1)Where more than one executor is appointed in a will and not all the executors have made an application for a grant, an executor who subsequently intends to apply for a grant and has not renounced the right to a grant may apply to be joined to the application before or after the grant is made.
(2)An application made under sub rule (1) shall be made by filing summons and an affidavit in support of the application.
(3)A court may, on receipt of an application under sub-rule (1), require the grant already issued and its certified copies to be filed in the Registry.

10. Application for proof of oral will

A person may apply for proof of an oral will by filing originating summons and an affidavit in support of the application containing evidence relating to
(i)the making and date of the will;
(ii)the exact words of a testator;
(iii)the name and address of an executor;
(iv)the name and address of witnesses;
(v)whether the testator satisfied section 6(4) of the Act at both the time of making the will and at the testator=s death; and
(vi)whether the deceased at any time executed or caused to be executed a written will.

11. Application by trust corporation

(1)An application for a grant to a trust corporation shall be made by an officer authorised under section 4 of the Administration of Estates (Trust Corporation) Act by filing originating summons and an affidavit in support of the application.
(2)An officer referred to under sub-rule (1) shall depose in the affidavit that a corporation is a trust corporation and has power to accept a grant.
(3)An application made under sub-rule (1) shall be accompanied by consent of all persons entitled to a grant and proof of authority of the officer making the application.
[Cap. 62]

12. Notice to court of facts relevant to application for grant

(1)A person, whether or not a party to the application for a grant, may file a notice supported by an affidavit to notify the court of—
(a)the making or contents of a will of the deceased whether written or oral;
(b)the rights of a dependant or a person who may be entitled to an interest in the estate of the deceased; or
(c)a matter which may require further investigation before a grant is made.
(2)A person who files a notice and an affidavit under sub-rule (1) may be required to give evidence before the court.

13. Application for grant of codicil

(1)A person may apply to the court for a grant of a codicil discovered after a will is proved, by filing summons and an affidavit in support of the application under the action in which the original grant was made.
(2)A deponent to an affidavit in support of the application under sub-rule (1) shall exhibit the codicil and state the reason the codicil was not submitted for proof together with the will and further facts as may be necessary for consideration by the court.

Part IV – Renunciation of grant

14. Renunciation of grant

(1)An executor who intends to renounce the right to a grant shall—
(a)notify the court orally at the hearing of the application for a grant; or
(b)where there is—
(i)an action before court, make an application by filing summons and an affidavit in support of the application; or
(ii)no action before court, by filing originating summons and an affidavit in support of the application.
(2)An executor who renounces the right to a grant may make an application before the Registrar to withdraw the renunciation by filing a summons and an affidavit in support of the application.

15. Death of executor who has not renounced right to grant

Where an executor who has not renounced the right to a grant dies before the testator or survives the testator but dies before making an application for a grant, an applicant for a grant shall file a certificate of death or other evidence that the court may require as proof of the death of the executor.

16. Citation

(1)A creditor or a person who claims an interest in the estate of a deceased person shall, on payment of a fee set out in High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021 cause to be issued by the court a citation in Form VII set out in the Schedule and an affidavit in support of that citation.[S.I. No. 91 of 2021]
(2)The court may, if the court considers it necessary, accept an affidavit sworn by a citor’s practitioner.
(3)A citor shall serve the citation on the person cited personally or by delivering the citation at the address of the person cited.
(4)A citor shall prove service of the citation by filing an affidavit of service.
(5)A person cited shall enter appearance in Form VIII set out in the Schedule within fourteen days of being served with the citation.
(6)A person cited in a citation who intends to accept or take a grant may, after entering an appearance, apply for a grant by filing originating summons and an affidavit in support of the application.

17. Citation to propound codicil

(1)A citation to propound a codicil shall be supported by an affidavit and be directed to—
(a)the executor; and
(b)a person interested in the estate.
(2)A citation under sub-rule (1) may be issued at the instance of a citor who has an interest contrary to that of the executor or other person.
(3)A citor may apply for a grant as if the will is not a valid document where the fourteen days under rule 16 (5) for entering an appearance has elapsed and the person cited has not—
(a)entered an appearance in the Registry; or
(b)propounded the codicil.
(4)The court may, when hearing an application under sub­rule (3) and before making a grant make inquiries and orders that the court considers necessary.

18. Order to bring will or to attend examination

(1)A person who has an interest in the estate of a testator may apply to court by filing summons and an affidavit in support of the application for an order requiring a person to produce a document which is or appears to be a testamentary instrument executed by the testator which is believed to be in the possession of that person.
(2)A person served with summons and an affidavit referred to under sub-rule (1), may file an affidavit in opposition to the application.
(3)Despite sub-rule (2), any other person may file an affidavit if that person is in possession or control of a document under sub-rule (1) by virtue of that person being—
(a)a practitioner for testator by whom, or by whose, direction the document was executed; or
(b)a professional advisor in relation to the testator.

Part V – Making of grant

19. Making of grant

A court may, on hearing an application under rule 7, grant probate or letters of administration with a will annexed in Form IX set out in the Schedule.

20. Rectification of grant

(1)A personal representative who seeks to rectify an error in the grant in accordance with section 63 of the Act shall apply to the court by filing ex-parte summons and an affidavit in support of the application setting out the reasons for the application.
(2)An application under sub rule (1) shall be filed within twenty one days of the making of the grant.

21. Limited grant

(1)The court may, on the application of a person who is not entitled to a grant and on being satisfied that the matter is of urgency, make a limited grant for the protection of the assets of the deceased.
(2)An application for a limited grant under sub-rule (1) shall be made in accordance with rule 7.
(3)A grant made under sub rule (1) shall be expressly limited for the purpose only of collecting and doing acts that may be necessary for the preservation of the estate of the deceased until a further grant is made.
(4)A copy of a limited grant when issued shall be served on all persons with beneficial interest and proof of such service shall be filed before court.
(5)An earlier limited grant made shall cease to have effect without any prejudice to an act or other thing lawfully done under that limited grant where a grant is made under the Rules.
(6)A holder of a limited grant shall account to court for assets collected, payments made and expenses incurred by that holder of a limited grant.

22. Limited grant not to prejudice making of full grant

The making of a limited grant under rule 21 shall not prejudice the right of a personal representative to apply for a grant to the estate of the deceased under these Rules.

Part VI – Confirmation, resealing, rectification and revocation of grant

23. Resealing of grant issued outside Republic

(1)A personal representative to whom a grant is made or that person’s practitioner may apply to the court for the resealing of a grant issued by the court outside the Republic by filing an originating summons and an affidavit in support of the application.
(2)An application under sub-rule (1) shall be accompanied by—
(a)a certified copy of the grant;
(b)a certified duplicate copy of the grant sealed with the seal of the court of probate which issued the grant; and
(c)an oath of the personal representative.
(3)A creditor may, before an application for resealing a grant is determined, bring an application before court for security of payment of a debt from the estate of the deceased by filing a notice of motion and an affidavit in support of the application in accordance with section 5 of the Probates (Resealing) Act.
(4)A person who intends to object to an application for resealing of a grant may file a notice of objection in Form X set out in the Schedule and an affidavit in support of the notice.
(5)The court may, where all the necessary requirements are complied with in accordance with the Act and these Rules, make an order for resealing of the grant.
(6)A personal representative shall advertise a notice of resealing in Form XI set out in the Schedule in a daily newspaper of general circulation in the Republic.
(7)A personal representative shall file an affidavit showing proof of advertisement of the notice of resealing of a foreign grant before obtaining the resealed grant.
[Cap. 61]

24. Evidence of foreign law

(1)Where an application for a grant requires evidence of the law of another country, the court may accept an affidavit of a person who practices or has practiced as a practitioner in that other country.
(2)The court may not accept an affidavit under sub-rule (1) where the deponent is the person claiming to be entitled to the grant or the person’s practitioner.
(3)The court may, in special circumstances, accept an affidavit of a person who is not a practitioner if the court is satisfied that the person has knowledge of the relevant law of that country.

25. Revocation or annulment of grant

(1)A person may apply before the court for revocation or annulment of a grant in accordance with section 51 of the Act by filing a summons and an affidavit in support of the application within twelve months of the date—
(a)of issuance of the grant; or
(b)on which the executor has been called on to furnish an account of administration of the deceased’s estate.
(2)An affidavit under sub rule (1) shall contain the—
(a)facts on which the application is made; and
(b)extent to which the estate has been administered with any material information in relation to the estate.
(3)An application made under sub-rule (1) shall be served on the personal representative and any person with a beneficial interest in the deceased’s estate.
(4)A person served with an application under sub-rule (3) may file an affidavit stating whether that person supports or opposes the application and the grounds on which that person relies.

Part VII – Application for family provision

26. Application for provision in will

(1)A person may apply to the court for provision in a will by filing a writ of summons accompanied by a statement of claim, before or after a grant is made.
(2)A statement of claim under sub-rule (1) shall state—
(a)the date of death of the testator;
(b)the date of the last will and whether oral or written;
(c)the relationship of the applicant to the testator and the grounds on which, having regard to section 20 of the Act, the applicant claims to have been a dependant of the testator at the time of death;
(d)the name and address of each dependant of the deceased at the time of death;
(e)where a grant to the estate of the deceased has been issued, to whom it was granted and the date of issue;
(f)the nature, situation and amount of the property of the deceased and the value of the net estate;
(g)the past, present or future capital or income of the applicant derived or expected to be derived from any source;
(h)the existing and future means and needs of the applicant;
(i)whether during the lifetime of the testator, the testator had made an advancement or other gift to the applicant;
(j)the conduct of the applicant in relation to the testator;
(k)the situation and circumstance of the other dependants of the testator and of a beneficiary under a will of the testator; and
(l)the nature of the case including the testator’s reason for not making provision for the applicant.
(3)An applicant shall, where an application has been granted, serve the writ of summons and statement of claim referred to under sub-rule (1) on the personal representative and representatives of the person who appears to be entitled to apply for a grant where a grant has not been made.

Part XI – General provisions

[Please note: Numbering as in original.]

27. Wills Register

The Registrar shall establish and maintain a Wills Register which shall contain the—
(a)name of the testator;
(b)serial number assigned to the will; and
(c)date of deposit of the will.

28. Furnishing of translation

Where a will is written in a language other than English, a translation made by a competent person shall be exhibited in the application for a grant with a verification of the translation in Form XII set out in the Schedule.

29. General application

(1)Where there are no testate proceedings before court, a person may make an application relating to the estate of a deceased person for which no provision is made elsewhere in these Rules by filing an originating summons and an affidavit in support of the application.
(2)Where there are testate proceedings before court, a person may make an application relating to the estate of a deceased person for which no provision is made elsewhere by filing summons and an affidavit in support of the application.

30. General heading

(1)Where an application under these Rules relates to a will and there are no proceedings pending under the Act, the application shall be headed as in Form XIII set out in Schedule.
(2)Where at the time of making an application relating to a will there are pending, or there has previously been, proceedings under the Act regarding that will or any other will or the property of the deceased, the application shall bear the cause number of that proceeding.

31. Form of proceedings

Except as otherwise provided in these Rules, where there are matters in contention between parties in relation to a will, an action shall be commenced by way of writ of summons accompanied by a statement of claim.

32. Application to sell

A personal representative who intends to sell the property of the testator’s estate shall apply to the court by filing summons and an affidavit in support of the application containing proof of—
(a)the grant;
(b)ownership of the property by the testator; and
(c)consent to sell from the beneficiaries, if any.

33. Rendering of account

A personal representative shall, when ordered by the court or on an application by an interested party—
(a)produce in court, a full inventory of the estate of the deceased; and
(b)render an account on the administration of the estate of the deceased by filing an affidavit with supporting documentation.

34. Extension of time

Where a period is fixed by these Rules or by an order of the court for the performance of an act, the court may, on application by a party, extend the period.

35. Application of Rules to pending proceedings

(1)These Rules shall, on the date of commencement of these Rules, apply to every application and proceedings before the court.
(2)Subject to sub rule (1), these Rules shall not invalidate anything previously done or made in lawful compliance with the practice and procedure existing and in force on the date of commencement of these Rules.

36. Saving of inherent powers of court

Nothing in these Rules limits or otherwise affects the inherent powers of the court to make orders that may be necessary in the interest of justice or prevent abuse of court process.

37. Appeals against decision of Registrar

A person who is aggrieved with the decision of the Registrar may appeal to a Judge in chambers by filing a notice of appeal within seven days of the date of the decision.

Schedule (Rules 6, 8, 16, 20, 26, 30, 32)

Forms

[Please note: Forms have not been reproduced. Please refer to the publication document.]
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History of this document

01 September 2023 this version
Commenced
17 August 2023
Assented to