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Intestate Succession Rules, 2023

Statutory Instrument 38 of 2023

Intestate Succession Rules, 2023
This is the latest version of this Statutory Instrument.
Citation
Statutory Instrument 38 of 2023
Primary work
Intestate Succession Act, 1989
Date
1 September 2023
Language
English
Publication
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Intestate Succession Act, 1989

Intestate Succession Rules, 2023

Statutory Instrument 38 of 2023

[Laws, Volume 5, Cap. 59]IN EXERCISE of the powers contained in section 47 of the Intestate Succession Act, the following Rules are made:

Part I – Preliminary

1. Title

These Rules may be cited as the Intestate Succession 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 letters of administration or other relief under the Act or these Rules;“Assistant Registrar” means the Assistant Registrar appointed under section 7 of the Judiciary Administration Act, 2016, and designated to perform the functions under rule 5;[Act No. 26 of 2016]“certified copy” means a copy of a document or record signed and certified as a true copy of the original by a Commission for Oaths;“Court” has the meaning assigned to the word in the Act;“grant” means a grant of letters of administration to the estate of a deceased person made under Part V of these Rules;“objector” means a person who has lodged an objection under rule 11 to the issue of a grant of letters of administration;“personal representative” means a person to whom a grant of letters of administration is made;“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; and[Act No. 26 of 2016]“Registry” means the Registry of the Family Division of the High Court.

3. Application

(1)Subject to these Rules and any other written law, the Probates (Resealing) Rules, the High Court Rules and the Rules of the Supreme Court Practice 1999 (White Book) of England shall apply to the commencement of proceedings and procedure in intestate 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 intestate 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 be responsible for—
(a)keeping or causing to be kept and maintained a register of applications for a grant filed in the Registry;
(b)sealing of grants issued by the court;
(c)assisting illiterate applicants to draft and file court process under these Rules at a fee set out in the High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021; and[S.I. No. 91 of 2021]
(d)issuing of notices of applications made under these Rules.
(2)The Registrar may delegate functions under sub-rule 1 to the Assistant Registrar.

6. Inspection of register of record

The register of applications referred to under rule 5(a) shall be kept at the High Court and shall be open for inspection to members of the public during normal office 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]

Part III – Application for grant

7. Application for grant

(1)A person may apply to court for a grant by filing originating summons and an affidavit in support of the application.
(2)An affidavit in support of the application referred to under sub-rule (1) shall contain the following information:
(a)relationship of the applicant to the deceased or the capacity in which the applicant makes a claim;
(b)postal and electronic mail address, telephone number and residential address of the applicant;
(c)full names of the deceased;
(d)date and place of death of the deceased;
(e)last known place of residence and the domicile at date of death of the deceased;
(f)whether the deceased died intestate;
(g)an inventory and an estimate of the value of all the assets and liabilities at the date of death, including those that may have arisen or become known since that date; and
(h)in case of total intestacy or where a person leaves a will but dies intestate as to some beneficial interest in that person’s moveable or immoveable property—
(i)the names, addresses, marital status and description of all surviving spouses and children of the deceased; or
(ii)where the deceased left no surviving spouse or child, the particulars of persons who would succeed in accordance with the provisions of the Act.
(3)There shall be exhibited in the affidavit in support of the application referred to in sub-rule (1) a certified copy of the certificate of death of the deceased, national registration card, burial permit or any other authentic document to prove the death of the deceased.
(4)An applicant shall—
(a)serve the application for a grant on a person named as an interested party and file an affidavit of service; and
(b)cause the application for a grant to be published in a daily newspaper of general circulation in the Republic.
(5)Where a person seeking a grant does not have an immediate or priority interest in the estate, that person shall—
(a)satisfy the court that a person having a priority interest has consented in writing to the making of the grant; and
(b)furnish the court with information that the court may require for the court’s decision.
(6)Subject to sub-rule (1), where the deceased is alleged to have been in a polygamous marriage, the application for a grant shall state—
(a)the number of spouses of the deceased living at the date of the deceased’s death and proof of the marriage of each spouse;
(b)the name of each spouse by whom the deceased was survived and that spouse’s place of residence or, if not living, the date and place of that spouse’s death; and
(c)whether that spouse has re-married.
(7)Subject to the discretion of the court, this rule does not apply to an application brought under the provisions of these Rules relating to a limited grant.
(8)An application for a grant shall be made within twelve months of the death of the deceased.
(9)Where an application for a grant is not made within the time specified under sub-rule (8), the application shall be made with leave of court.

8. Documents accompanying an application to obtain grant

An application referred to under rule 7(1) shall be accompanied by—
(a)a lodgement schedule in Form I set out in the Schedule;
(b)an administrator’s oath in Form II set out in the Schedule;
(c)an administration bond in Form III set out in the Schedule;
(d)a declaration of the deceased’s estate in Form IV set out in the Schedule; and
(e)a fee sheet in Form V set out in the Schedule.

9. Amendment or discontinuance of application for grant

An applicant may, before the issuance of a grant—
(a)apply to the court for an order to amend the application by filing summons and affidavit in support of the application and serve on each interested person; or
(b)withdraw an application for a grant at any time by filing a notice of discontinuance.

10. 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 and an affidavit in support of the notice to notify the court on—
(a)the rights of a dependant or of a person who might be entitled to an interest on the intestacy of the deceased; or
(b)a matter which might require further investigation before a grant is made.
(2)A person who files an affidavit under sub-rule (1) may be required to give evidence on oath before the court.

11. Objection to application for grant

(1)A person who intends to object to an application for a grant may, within seven days of the date of service of the application, file with the court a notice in Form VI set out in the Schedule and an affidavit indicating the grounds for the objection and shall serve a copy of the notice on the applicant.
(2)A person who files a notice of objection under sub-rule (1) may withdraw the notice by filing a notice of withdrawal of the objection, and serve a copy on the applicant, except that such person shall not be entitled to file another notice of objection in respect of the same application for a grant.
(3)Where the court is aware of an objection in respect of the estate of the deceased, the court shall not make a grant without giving the party making the objection an opportunity to be heard.
(4)An objection to an application for a grant made after the expiration of the period stipulated under sub-rule 1 shall be made with leave of court.
(5)An application for extension of the period specified in sub­rule (1) shall be made by summons and an affidavit before the expiration of that period.

Part V – Issuance of grant

12. Determination of application for grant

(1)The court shall, on hearing an application under rule 7, determine which person is eligible to be issued for a grant.
(2)The court shall, before making a determination under sub­rule (1), satisfy itself that questions relating to a grant including proof of the identity of the deceased and the applicant have been answered.
(3)The court shall, in determining the application, consider the greater and immediate interest in the deceased’s estate in priority to lesser or more remote interest, and take into account the—
(a)surviving spouse;
(b)ages of the children of the deceased by whom the deceased was survived, whether or not they were being maintained by the deceased immediately prior to the death of the deceased;
(c)parent or guardian who has been responsible for the welfare and education of the deceased; and
(d)dependants who were living at the time of death and were being maintained by the deceased immediately prior to the death of the deceased with full details of the manner and extent and for what period they were being, or had been so, maintained.
(4)An applicant shall, where the deceased has died wholly or partially intestate, satisfy the court that the identification and shares of persons beneficially entitled to the estate are ascertained and determined.
(5)The court may make an order—
(i)after it satisfies itself that the applicant is a person entitled to an order for a grant; or
(ii)concerning the identities, shares and interests of the persons beneficially entitled and any other issue which arises.

13. Solvency of proposed administrator

(1)The court may, before a grant is issued, satisfy itself on the applicant’s—
(a)financial solvency; and
(b)ability to complete the administration of the estate having regard to the nature and extent of the estate of the deceased likely to come under the administrator’s charge.
(2)The court may order an applicant to file an affidavit stating the applicant’s income.
(3)The court may order an applicant to provide a surety to guarantee loss which may be suffered by a person interested in the administration of the estate if the administrator breaches the administrators’ duties.
(4)A guarantee which is provided under sub-rule (3) shall have the same effect as a contract under seal made between a surety and a person interested in the administration of the estate of the deceased.
(5)A person who intends to enforce an obligation under a guarantee shall apply for leave of the court.
(6)This rule does not apply where a grant is issued to the Administrator-General or to a spouse of the deceased.

14. Sealing and issue of grant

A grant shall be issued in Form VII set out in the Schedule and shall be signed by a Judge and sealed with the seal of the registry on payment of a fee set out in the High Court (Civil Jurisdiction) (Family Court Fees) Regulations, 2021.[S.I. No. 91 of 2021]

15. Grant where deceased died domiciled outside Republic

(1)Where the deceased died domiciled outside the Republic, the court may seal a grant issued to a person by a court with jurisdiction at the place where the deceased died domiciled in accordance with the Probates (Resealing) Act.
(2)Where the deceased died domiciled outside the Republic and the whole of the estate consists of immovable property in the Republic, a limited grant may be issued by the court in accordance with the law which would have been applicable if the deceased had died domiciled in the Republic.
[Cap. 61]

16. 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)A court shall not accept the affidavit under sub-rule (1) where the deponent is the person claiming to be entitled to the grant or that person’s practitioner.
(3)A 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.

17. Grant to 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 Corporations) Act, by filing originating summons and an affidavit in support of the application.[Cap. 62]
(2)An officer referred to in 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 the consent of all persons entitled to a grant and proof of authority of the officer making the application.

18. Limited grant

(1)A court may, on the application of a person who is not entitled to a grant, make a limited grant for the protection of the deceased’s assets on being satisfied that the matter is of urgency.
(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 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)The issue of a limited grant by the court to a personal representative shall not prejudice the right of that personal representative to apply for a grant to the deceased’s estate under these Rules.
(6)Where a grant is made under these Rules, 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.
(7)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.

Part VI – Resealing, rectification and revocation of grant

19. Resealing of grant issued outside Republic

(1)An application for resealing of a grant issued by a court outside the Republic shall be made by a personal representative or that person’s practitioner or attorney.
(2)An application under sub-rule (1) shall be made by filing originating summons and an affidavit in support of the application in Form VIII set out in the Schedule accompanied by the following documents:
(a)a certified copy of the grant;
(b)a certified duplicate copy of the grant sealed with the seal of the court which issued the grant;
(c)the power of attorney where applicable;
(d)a full inventory of the assets and liabilities of the estate of the deceased in the Republic; and
(e)evidence as to the domicile of the deceased.
(3)Where a creditor seeks to reseal a grant issued outside the Republic, the court may require that creditor to give, within thirty days, adequate security specifically for the payment of debt due from the estate to creditors residing within the jurisdiction in accordance with section 5 of the Probates (Resealing) Act.
(4)An application under sub-rule (1), shall be published in a daily newspaper of general circulation in the Republic in Form IX set out in the Schedule.

20. Rectification of grant

A personal representative who seeks to rectify an error in the grant in accordance with section 41 of the Act shall, within thirty days of the issuance of the grant, apply to the Registrar by filing ex parte summons and an affidavit in support of the application setting out the reasons for the application.

21. Revocation or annulment of grant

(1)A person may apply for revocation or annulment of a grant in accordance with section 29 of the Act by filing summons and an affidavit in support of the application in Form X set out in the Schedule.
(2)An affidavit deposed 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 and any other information relating to the estate.
(3)An application made under sub-rule (1) shall be served on the personal representative and all persons with beneficial interest in the estate of the deceased.
(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.
(5)An application for revocation or annulment of a grant shall be made within twelve months of the date—
(a)of issuance of the grant; or
(b)on which the personal representative has been called on to furnish an account of administration.

Part VII – General provisions

22. Contentious issue

A dispute under the Act shall be made by filing of a writ of summons accompanied by a statement of claim.

23. General heading

(1)An application made under these Rules, where there are no intestate proceedings before the court, shall be headed in Form XI set out in Schedule.
(2)Where at the time of making an application referred to under sub-rule (1), there are pending or have previously been proceedings regarding the same estate, the application shall bear the cause number of that proceeding.

24. Application for sell

Where a personal representative intends to sell the property of the estate of the deceased in accordance with section 19(2) of the Act, the application shall be made by filing summons and an affidavit in support of the application containing evidence of—
(a)ownership of property by the deceased;
(b)consent of beneficiaries together with certified copies of the beneficiaries national registration card; and
(c)the grant.

25. Rendering an account

A personal representative shall, when ordered by a court or on application by a party, render an account on the administration of an estate by filing an affidavit with supporting documentation.

26. Application of Rules to pending proceedings

(1)These Rules shall, from the date of commencement, apply to applications 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.

27. Application not provided for

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

28. 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.

29. Savings of inherent powers of court

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

30. Appeal against decision of Registrar

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

Schedule (Rules 8, 11, 14, 19, 21, 23)

Forms

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

History of this document

01 September 2023 this version
Commenced
17 August 2023
Assented to
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