What a Certificate of Occupancy actually proves — and what it does not
A C of O is strong evidence of title. It is not conclusive proof of it, and the difference decides cases.
A death in the family is followed, sooner or later, by a bank. The account is frozen, the family is told that nothing can be released without a grant, and a process nobody has thought about begins under conditions nobody would choose.
The reason is straightforward, even if the process is not. Until the court makes a grant, no person has legal authority to deal with the estate of someone who has died. Not the eldest child, not the surviving spouse, not the person who has been managing the family’s affairs for years.
Two tracks
Everything depends on a question asked at the very start: was there a valid will?
Where there was, the estate is distributed according to it, and the executors named in the will apply for a grant of probate.
Where there was not, the estate passes on intestacy, and those entitled apply for letters of administration. This article deals with that second case.
Which succession regime applies
Nigeria has no single law of intestate succession, and this catches many families out. Which regime governs depends on the deceased’s personal law and, importantly, the nature of any marriage.
Where the deceased was subject to customary law, the customary law of the community governs distribution — who takes, in what shares, and in what order.
Where the marriage was contracted under the Marriage Act, statutory rules of distribution may apply instead, and the customary position may be displaced in whole or in part.
Establishing which regime applies is not a preliminary formality. It determines who is entitled, and therefore who may apply for the grant at all. Families who assume the answer and proceed on that assumption frequently find the application contested by someone they had not counted.
The limits on customary succession
Customary rules of succession are subject to the same limits as customary law generally. A custom that is repugnant to natural justice, equity and good conscience is not enforced by the courts.
Nigerian courts have applied that principle to customs that exclude female children from inheriting, and the constitutional prohibition on discrimination is engaged on the same facts. Where a daughter is told that the custom gives her nothing, the assertion is not the end of the matter, and it should not be treated as if it were.
Who may apply
Where the estate is governed by statutory rules, the persons entitled to a grant are broadly those with the greatest beneficial interest, in an order of priority — typically the surviving spouse first, then children, then other relatives in a defined sequence.
Where customary law governs, entitlement follows the applicable custom, and the persons recognised by that custom apply.
In practice the court will not ordinarily make a grant to a large number of applicants; grants are commonly limited to a small number of administrators who act on behalf of all those entitled. That does not reduce the beneficial entitlement of anyone else — administrators hold the estate for the benefit of those entitled to it, and they account.
The process
The application is made to the Probate Registry of the High Court.
It requires, in outline: the death certificate; a formal application in the prescribed form; an inventory of the assets and liabilities of the estate; details of the applicants and their relationship to the deceased; and the prescribed forms of oath and administration bond.
The application is advertised, so that anyone with an objection has the opportunity to enter a caveat. Where a caveat is entered, the grant does not issue until the objection is resolved.
Sureties are commonly required. The administration bond is entered into with sureties who undertake, up to a stated value, that the administrators will properly administer the estate. Finding sureties acceptable to the registry is, in practice, one of the slower parts of the process.
The estate is then assessed for the fees and duties payable, and on payment and completion of the formalities, the grant issues.
Where entitlement is disputed
Where the family cannot agree who should apply, or where someone contests the entitlement asserted, the dispute is resolved by the High Court in contentious proceedings, and the grant waits for the outcome.
Where customary law governs distribution, the custom must be proved by evidence in the ordinary way — by those with knowledge of it, supported where possible by evidence of how the community has in fact dealt with estates on previous occasions.
Contested applications are slower and considerably more expensive, and the cost falls on the estate itself. It is generally worth exhausting the possibility of agreement before the position hardens.
On timing
Grants take time. How long depends on the size of the estate, whether entitlement is disputed, how quickly sureties can be found, and the pace of the registry.
No responsible estimate can be given in general terms, and any specific timeframe offered without knowledge of the particular estate should be treated with caution.
The practical advice
Two things reduce difficulty later, and both are simple.
Make a will. It removes the question of which regime applies, it removes the question of who is entitled, and it is far cheaper to make than the litigation its absence tends to produce.
Keep the documents together. Title documents, share certificates, account details, insurance policies, and a note of where things are held. A great deal of the delay in estate administration is not legal difficulty at all — it is a family trying to establish what the deceased actually owned.
