O 66 court with jurisdiction where deceased had at time of death a fixed place of abode, where died outside with no fixed place of abode in Gh court in area where any of his properties may be found. Court may make interim orders to preserve or discover properties within its jurisdiction upon ex parte application by interested person or creditor.
Where a person other than one named executor or appointed by court as administrator takes possession of or deals otherwise with deceased’s property shall be subject to same liabilities as executor or administrator but in addition guilty of offence of intermeddling liable on summary conviction to a fine less 500 penalty units or twice value of estate or imprisonment less 2 years or both. Per Osei Kwaku v Georgina Konadu Kusi, civil proceeding can’t be made to enforce intermeddling as it is a criminal matter report ought to be made to the police. Where named executor takes possession of and deals with deceased’s property and doesn’t apply for probate within 3 months after death is liable as intermeddler.
O 66r5 court may order one in possession of doc purporting to be testamentary to produce paper to court whether or not action is pending, or where on reasonable grounds court believes one has knowledge of any testamentary paper to be examined in court and be produce whether action pending or not per O66r6.
Court suo motu may on application of any person interested in will give any notice to named executor to prove will or renounce probate, and upon receipt prove or renounce within 14 days, where he fails to prove or renounces executorship and any person entitled may by application for LA with will annexed.
Every application for probate by executor or LA by any person is by ex parte motion supported by affidavit and a set of statutory forms and such docs as court may require. For Probate: motion and affidavit identifying deceased, place and date of death, date of last will, last place of abode, value of estate, oath of executor in statutory form, affidavit of witnesses in proof of due execution of will in statutory form, declaration of movables and immovables of testatorin statutory form, death certificate, copy of will. For Letters of Adiministration (LA): motion and affidavit, identifying deceased, interest of applicant, place of abode, date and place of death, name of spouse and children if any, affidavit of head of family confirming facts in applicant’s affidavit, oath for administrator not with will annexed in statutory form, declaration of movable and immovables of intestate in statutory form, death certificate.
Where application for LA is granted, notice shall be posted for not less than 21 days in court, public place where interested persons may see, last known place of abode of deceased. A person claiming interest in estate who wishes to ensure that no probate or LA is granted without his notice may file a caveat, either before or after an application for probate or LA is made but not before grant, caveat in force for 3 months, brought to notice of court by registrar and effect is that nothing ought to be done on application until caveat is heard. Caveator shall be warned by registrar at instance of applicant to file affidavit of his interest, if not obeyed court may grant probate or LA applied ex parte, if obeyed affidavit of interest served on applicant and application for grant is made on notice. Where contested, court determines one entitled to grant or order applicant to issue writ against Caveator within 14 days.
Order of Priority: persons entitled in probate or LA with will annexed are named executors, creditor-specific legatee or devisee or personal rep of any such person, residuary legatee holding in trust for another, ultimate residual legatee, any person who has no interest in will but would have been entitled if deceased died intestate-surviving spouse, children, parent and customary successor in that order. In Re Asante (Decd) Owusu v Asante the number of persons entitled to LA shall not exceed 4, where two or more in same degree are entitled court may grant to any without joining others or settle dispute where contested.
O 66r15 where one with priority to grant of probate or LA delays or refuses to tale it and doesn’t renounce same, another with inferior right may serve notice on him to take or renounce right, where he fails within 14 days to renounce or apply for grant person with inferior right shall apply for grant and court may grant.
Proof of will in Common Form where will is regular and well executed on its face and no dispute as to its validity, application may be supported by affidavitdeposing to due execution and attestation of will per O 66r25. Proof of will in Solemn Form where the validity of will is in doubt executors commence action by writ asking court to pronounce will valid per O 66r26.
Any person with interest may by notice in writing request named executor to prove will in solemn form stating name address and description of person filing, interest of said person, specific grounds upon which validity is disputed, executor shall file answer to notice within 8 days to prove by issuing writ joining challenging person as Dor renounce, court may suo motu join any interested person as P or D, a person not already party may apply with leave to court with affidavit showing interest served on all contesting parties to intervene in action i.e. intervention. Where executor fails to issue writ court may order any beneficiary to issue writ to prove will and claim LA with will annexed.
O 66r28 instead of filing notice for executor to prove will in solemn form, interested person may by writ against executor declare that will be invalid. O 66r29 where grant already made person seeking to revoke grant may issue writ seeking revocation of grant.
Probate Action: an action for grant of probate or LA, revocation of grant, order or judgement for or against validity of will. Commenced by writ of summons and notice shall be served on persons granted to bring and leave probate or LA to court registrar within 14 days upon notice.Where it is for revocation of probate or LA, party must first do citation (filing notice to executor or administrator to deposit probate in court) before issuing writ. Party to action may apply for notice to be issued against any person with adverse interest not party to enter appearance within 8 days, else judgement would be entered against him, no judgement in default of appearance available, P file affidavit of due service and set down action for trial. Pleadings same in all civil litigation except that, P must allege in SOC that he denies interest of Dis he disputes, party must justify interest if denies other’s, party pleading testator didn’t know or approve will shall plead will not duly executed, testator of unsound mind memory and understanding at execution, will is forgery, testator under undue influence. D may counterclaim, no judgement for default of pleadings, actions set for trial. O 66r43 discontinuance of probate action shall be with leave and court may order grant to those entitled.
Administrative Action: an action for the administration of deceased’s estate under direction of court, execution of trust created under will, composition of class of person having claim against estate or beneficial interest, rights or interest of creditor of estate or beneficial entitlement under trust, executor or administrator to and verify accounts or payment of money into court of money held in trust or approving their sale or purchase or transaction or order to restrain them from or compelling to do particular act. O 66r47 all executors or administrators must be made parties to action, where they themselves bring action any not consenting to be made P must be made D, persons with beneficial interest under trust need not be made parties. S 77 of Administration of Estates Act 1961 (Act 63) if any infant or life interest beneficiary under will or intestate there must be at least two individuals or trust corporations with or without individuals as administrators.
Limited & Special Grants: where will lost or damage or unobtainable grant made on duplicate or authenticated copies, where entitled person, executor, outside jurisdiction grant, of LA with will annexed but not probate, may be made to his power of attorney within jurisdiction, where minor-under 18 entitled grant made to guardian LA with will annexed where child is sole executor, where disabled grant not for his use or benefit made during period of insanity but to another in same degree as he, where person becomes incapacitated after grant it shall be revoked and new grant made to another upon application, if prisoner granted to attorney or administrator appointed by court, if jailed after grant same is revoked and new grant made, where grant limited by terms of will it shall be upheld, where one to whom limited grant is made dies before completing administration court shall re-grant to another person entitled i.e. second grant.
Administration Pendente Lite: S 80 of Act 63 where probate action is pending application may be made by any party or interested person to court to grant administration pendente lite and if person to be appointed is connected to suit, consent of the party shall be sought unless otherwise, appointed person shall submit accounts to court provide security and be remunerated as court directs.
Administration De-Bonis Non: special grant in respect of unadministered assets where all persons to whom grant is made become deceased without completing administration grant of LA with will annexed or LA shall be made on unadministered to those entitled.