personal representatives

Who are Personal Representatives?

People appointed by a Testator in a will, or by the court, to manage a deceased person’s estate. S.2 AEL.

What are the two types of Personal Representatives?

Executors (appointed by will) and Administrators (appointed by court).

Can a Testator appoint both Executors and Trustees?

Yes, but note: executorship
e trusteeship. They are separate offices.

Can an Executor appoint another Executor?

No. But a Trustee can appoint another trustee if empowered under trust arrangements.

Can an Executor delegate tasks?

Yes — they can employ solicitors, engineers, and other professionals for specific functions.

Is an Executor a trustee in the strict sense?

No. Executors must act in good faith, but their strict duties differ from trustees.

When can an Executor transfer duties?

Only when the will expressly appoints them also as trustees — then they may:

• appoint another trustee
• retire from the trust

What is Express Appointment of Executors?

A Testator directly names the Executor(s) in the will (usually in the appointment clause).

What are the advantages of Express Appointment?

• Easier probate
• Reduced disputes
• Clear executor identity.

Can Executors be appointed for different parts of the estate or for specific periods?

Yes — a Testator may split duties or limit duration (e.g., until a child reaches maturity).

What is Appointment by Implication?

When a person is made Executor because duties in the will imply that they’re to perform executor functions — “Executor according to tenor.”

Is implication of appointment advisable?

No. It can create conflicting interpretations.

Does naming someone sole beneficiary automatically make them Executor?

No. Beneficiary
e Executor unless duties of an executor are assigned.

What must be shown before implied appointment exists?

The will must show intention that the person perform essential executor duties.

Cases supporting implied executive appointment?

• In the Goods of Cook (1902) — duty to pay debts = implied executor.
• Estate of Fawcett (1941) — duties in will = implied appointment.
• See Order 62 Rule 22(c), Lagos Rules 2019.

Can a Will contain both express and implied appointments?

Yes — an express clause may exist, and another clause may still imply additional executors.

What is Appointment by Operation of Law?

This occurs when a person becomes Executor automatically because they’re Executor of the will of the last surviving Executor of the original Testator. Also called Executor by Representation or Chain of Representation.

Must the Executor by Representation obtain probate?

Yes. It is NOT automatic — the court must be aware, and probate must be obtained.

Statutory basis for Executor by Representation?

Section 8 AEL (Lagos).

What happens if the last surviving Executor dies after taking probate but before fully administering the estate?

Any Executor of his own will becomes Executor of the FIRST Testator once he obtains probate of the later will.

Example of Executor by Operation of Law:

Chief Ogidan \rightarrow appointed Bobby Brown as Executor. Bobby Brown dies \rightarrow appoints Dr. Raphael in his own will. Dr. Raphael becomes Executor of Chief Ogidan by representation once he secures probate.

Does the Executor by Representation have same powers as original Executor?

Yes — identical authority.

When is a person NOT an Executor by Representation?

If:

• the first Executor fails to prove the will, OR
• the first Executor appointed someone else, OR
• chain is broken.

Can the second Executor pick and choose which executorship to accept?

No — no right of election. If he refuses the first Testator’s estate, he must renounce both executorships.

What breaks the chain of representation?

Chain breaks if the last surviving Executor:
a. dies intestate
b. fails to appoint executor in his will
c. fails to obtain probate
d. renounces probate.

What is S.10 AEL Appointment?

Where deceased dies intestate, property vests in the Chief Judge until letters of administration are granted. CJ may appoint an officer for “administration pending grant.”

What is Appointment by Court?

Court may appoint a PR when a person entitled is mentally/physically incapable, or where necessary in estate’s interest.

List cases where Court appoints PRs:

• Mental incapacity \rightarrow person authorized by Judge.
• No authorized person \rightarrow residuary beneficiary or next-of-kin.
• During minority/life interest \rightarrow additional Executor may be appointed.
• Infant sole Executor \rightarrow guardian appointed (Section 29 AEL, Lagos).
• Trust corporation may be appointed.

What if the person entitled resides outside the State?

Grant may be made to their lawful attorney, with notice to other Executors if any.

Other instances of court appointment include:

a. Where will authorizes appointment.
b. Intestate estate \rightarrow next-of-kin hierarchy (S.49 AEL).
c. Testate estate with break in chain.
d. Executors unavailable, incapacitated, or refuse to act.
e. Substitution upon PR’s application.
f. Pending contentious probate suit.

What is Appointment under a Power of Appointment / Authorization?

When a Testator authorizes another person (a nominee) to appoint the Executors of his Will.

Is the Executor directly named under this method?

No — the Testator names the nominee, and the nominee appoints the Executor.

Can the Testator guide the nominee?

Yes — the power may be discretionary or subject to guidelines.

Difference between appointment by implication vs. power of appointment?

• Implication \rightarrow no executor named at all.
• Power of appointment \rightarrow nominee is named, and THAT person appoints Executor.

What are Substitutional Executors?

Executors who only take office upon a stated condition occurring.

When is a Substitutional Executor validly appointed?

Only if the condition actually occurs — e.g., original Executor predeceases the Testator.

If Executor survives Testator but dies shortly after, can substitutional Executor step in?

No — condition is NOT triggered. Must appoint prior death before Testator.

Example of substitution clause:

Fawehinmi Will — appointed First Trustees Nigeria Ltd as Executor, if they decline/refuse to act \rightarrow Union Trustees Ltd becomes Executor.

What is Double Probate?

Where substitutional Executor comes in after first Executor has already taken probate. They obtain “double probate.”

When will substitutional Executors obtain initial probate?

When the first Executors refused to act and never took probate.

What are Letters of Administration (LOA)?

Discretionary court grants made in the interest of the estate and persons entitled. Authorities: S.46, S.49 AEL, Asere v Asere.

Who is entitled to LOA in intestacy? (Order of priority — S.49 AEL)

1. Spouse
2. Children
3. Parents
4. Siblings (full blood)
5. Siblings (half blood)
6. Grandparents
7. Uncles & Aunts (full blood)
8. Uncles & Aunts (half blood)
9. Creditors
10. Administrator-General

Does the court have discretion despite this order?

Yes — Obusez v Obusez. Court is not rigidly bound by blood relations alone.

Key facts from Obusez v Obusez:

• Marriage under the Act.
• Wife charged with murder of deceased.
• Life policy named twin brother + children as beneficiaries.
• Letters of Administration were granted to wife + close friend. Court held:
• Burial place and life policy do not determine succession.
• S.49(5) AEL does not limit entitlement to blood relatives.

Who can be appointed Executor?

• Natural persons
• Artificial persons (banks, trust corporations)
• Law firms (through partners)

Who should NOT be appointed Executor?

Minors, mentally unfit persons, criminals, persons of moral turpitude.

What if a minor is appointed Executor?

• If with adults \rightarrow adults get probate; power reserved for minor when of age. Omayemi v Okunubi, S.64 & 65 AEL.
• If sole Executor & there’s a minor beneficiary \rightarrow court appoints additional PR. Estate of Lindley (1953); S.24 AEL.

What is the effect of not appointing an Executor in a Will?

Will is still valid. PRs may apply for Letters of Administration with Will annexed. Authorities: Ord. 64 r.15(1)(a) Abuja; Ord. 62 r.22(a) Lagos.

Maximum number of PRs that can be granted probate?

Maximum = 4. (S.24(1) AEL)

Can probate be granted to 1 person?

Yes — except where:

• a life interest exists, or
• a minor is a beneficiary.

Probate may require an additional Executor. S.24(2) AEL

If a Will appoints more than 4 Executors, what happens?

Probate can only be granted to the first four named in order of priority. Power is reserved for the rest.

Is it advisable to appoint only ONE Executor?

No. They may:

• predecease the Testator,
• renounce probate,
• or be unable/unwilling to act.

What should a Testator do if appointing a sole Executor?

Appoint a substitutional/alternative Executor.

How many Executors should act as trustees?

At least two, except a trust corporation — because two trustees are needed to give a good receipt.

Can an infant be appointed Executor?

YES.

What happens if a minor is appointed with adults?

Adults get probate; power reserved for minor to apply for double probate upon attaining majority. Omayemi v Okunubi; S.64 & S.65 AEL.

What if minor is sole Executor?

Court appoints another PR until child is of age. Authority: Estate of Lindley (1953); S.24 AEL.

Administrators — Min & Max?

Minimum = 2.
Maximum = 4.
Exception: A trust corporation may act as sole administrator.

Are statutory qualities specified?

No — statute gives no list, but CAUTION is advised.

Why must caution be exercised?

Executor is the “living voice, mind and body of the deceased.”

What factors should Testator consider when choosing an Executor?

1. Willingness & availability
2. Capacity (professionals for large estates)
3. No conflict of interest
4. Harmony among multiple executors
5. Credibility & honesty
6. Knowledge of the Testator’s business
7. Logistics & proximity
8. Age — preferably younger than Testator.

Can witnesses be Executors?

No — Executors should NOT be witnesses.

Are Executors entitled to remuneration?

Generally NO — services are gratuitous. Authority: Re Orwell (1982).

When can Executors be remunerated?

1. By court order
2. Under Cradock v Piper rule (out-of-pocket expenses)
3. Charging clause in the Will

Lagos remuneration cap for Administrators?

Max 10% of income of the estate. (Order 63 Rule 10, Lagos 2019)

Abuja remuneration cap?

Max 5% of realized value. (Order 62 Rule 38, Abuja 2018)

When can higher remuneration be approved?

Where administration required extra work.

What is a Charging Clause?

A declaration in the Will allowing Executors to charge usual professional fees.

Cases:

• Re Pooley
• NBA v Koku
• Re Royce (1957) — witness as executor loses gift but may retain fees under charging clause.
• Contrasted with Re Pooley — attesting witness cannot rely on charging clause (S.15 Wills Act 1837)

What is Renunciation?

Renunciation = when an Executor refuses/unwilling to act and formally gives up the office.

Must renunciation be express?

YES — it must be a positive act, not passive. E.g., filing renunciation forms or affidavit. Authorities: O62 r.24 (Lagos), O64 r.42 (FCT).

When can renunciation occur?

Anytime before grant of probate.

Can an Executor renounce before the Testator dies?

No — that’s premature; executorial powers haven’t arisen.

What happens when an Executor renounces probate?

Under S.6(iii) AEL, their right to executorship ceases entirely, and it is treated as if no executor was appointed.

If ALL Executors renounce, what happens?

Grant will proceed as though the Will had no executors — LOA with Will annexed will be issued.

Can renunciation be partial (e.g., “I’ll manage only part of estate”)?

NO — must be total, not partial. Case: Paul v Moodie.

What is Cessation of Right of Executor (Implied Renunciation)?

Occurs where a sole Executor:
a. dies before taking probate
b. refuses after being cited
c. renounces
\rightarrow their right ceases \rightarrow estate treated as if no executor was appointed. Authority: S.6 AEL.

Can renunciation be withdrawn?

Yes — with permission of the Probate Registrar/court.

What must Executor show to withdraw?

“Exceptional circumstances” + estate’s interest must justify withdrawal.

What is the effect of withdrawal on previous acts of administrators?

Under S.7 AEL, earlier acts by administrators remain valid. A memo is endorsed on original grant.

Who is barred from renouncing probate?

An Executor de son tort — because they have already intermeddled.

Can an Executor act if LOA has already been issued?

NO — they must wait until existing LOA is revoked/cancelled before they can take probate.

Who is an Executor de son tort?

Someone who intermeddles with estate property without authority.

Is wrongdoing required?

No — any unauthorized dealing can qualify. Authority: Adeniyi Jones v Martins (1943).

Acts that DO NOT make someone executor de son tort?

Arranging funeral — Harrison v Rowley (1798).

Acts that DO make someone executor de son tort?

Collecting assets, paying debts — Re Stevens (1898).

Can a beneficiary become executor de son tort?

Yes — if they intermeddle before grant.

Does later obtaining grant cure executor de son tort status?

Yes — once proper grant is obtained, the status ends. O62 r.18 (Lagos/FCT).

Liability for loss to estate

Must refund any loss caused.

Liability for services procured

Must pay third parties who relied on their “authority.” Case: Adeniyi Jones v Martins.

Liability to creditors

Liable for debts owed by deceased. Case: Wokocha v Esiaba (1975).

Liability for personal expenses

No indemnity — must bear expenses personally. Cases: Ricket v Bank of West Africa (1959), Udo v Williams (1997).

Liability for fines

Lagos: minimum \text{N}50,000 (Order 57 r.17, 2012 Rules). Abuja: max \text{N}5,000 (Order 48 r.5, Abuja 2004).

Liability for inheritance tax

They must pay tax on what they touched. Case: New York Breweries Co. v AG (1899).

Liability to be cited

Can be compelled to prove will or take probate. Case: Estate of Biggs (1966).

What is the Executor’s Year?

Personal Representatives have up to 1 year from date of death to distribute the estate. Authority: S.47 AEL.

Is distribution mandatory within the year?

No — they’re not bound to complete distribution if not reasonably possible.

When can distribution be earlier than 1 year?

• By court order
• For pecuniary or general legacies, which attract interest if unpaid after 1 year
• For debts \rightarrow MUST be paid within the year.

Why can PRs sell/mortgage property?

To raise money for debts, liabilities, or to preserve the estate.

Limits on sale:

a. Reversionary interests not yet vested CANNOT be sold.
b. Personal chattels cannot be sold unless necessary. Authority: S.37 AEL.

Can Executors sell personally?

For personal property \rightarrow Yes, power is joint and several. Case: Attenborough v Solomon (1913).