Order 59 FCT (Civil Procedure) Rules 2025

Order 59 of the Federal Capital Territory (FCT) High Court (Civil Procedure) Rules 2025 is about Probate (Non-Contentious) Procedure. It contains the following rules:

1. (1) A person may, in his lifetime, deposit for safe custody in
   the Probate Registry his own Will, under his own seal and
   that of the Court.
   (2) The person depositing the Will shall furnish the
   Registrar with names/addresses of not less than two
   persons who shall be notified for the opening of the Will.
   (3) On receipt of an application to deposit a Will, the
   Registrar shall inspect the Will and see whether it appears
   to have been signed by the testator or by some other person
   in his presence and by his direction, and subscribed by two
   witnesses according to the provisions of the law, and shall
   not proceed further if the Will does not appear to be so
   signed and subscribed.
   (4) Where a Will appears to be signed and subscribed, the
   Registrar shall then refer to the attestation clause (if any)
   and consider whether the wording states the Will to have
   been, in fact, executed in accordance with those
   provisions.

2. (1) Where a Will contains no attestation clause or the
   attestation clause is insufficient or where it appears to the
   Registrar that there is some doubt about the due execution
   of the Will, the Registrar shall before admitting it to proof,
   require an affidavit as to due execution from one or more of the attesting witnesses or if no attesting witness is conveniently available, from any other person who was present at the time the Will was executed.

(2) Where an affidavit cannot be obtained in accordance
with sub-rule (1), the Registrar may, if he deems fit having
regard to the desirability of protecting the interest of a
person who may be affected by the Will, accept evidence
on affidavit from any person he thinks fit to show that the
signature on the Will is the handwriting of the deceased or
of any other matter which may raise a presumption in
favour of the due execution of a Will.

(3) Where the Registrar, after considering evidence –
(a) Is satisfied that the Will was not duly executed in accordance with relevant enactments, he shall refuse probate and shall mark the Will accordingly;
(b) Is doubtful whether the Will was duly executed, he may refer the matter to the court on motion.

3. Before admitting to proof, a Will which appears to have
   been signed by a blind or illiterate testator or by another
   person by direction of a testator, or which for any reason
   gives rise to doubt as to the testator having had knowledge
   of the contents of the Will at the time of its execution, the
   Registrar shall satisfy himself that the Will was read over
   to the deceased before its execution or that he had at that
   time knowledge of its contents.

4. (1) Where there appears in a Will any obliteration,
   interlineations, or other alteration which is not
   authenticated in the manner prescribed by law or by the reexecution of the Will or by the execution of a codicil, the
   Registrar shall require evidence to show whether the
   alteration was present at the time the Will was executed
   and shall give directions as to the form in which the Will is
   to be proved, but this sub-rule shall not apply to an
   alteration which appears to the Registrar to be of no
   practical importance.

(2) Where from a mark on a Will, it appears to the Registrar that some other document has been attached to the Will or if a Will contains any reference to another document in such terms as to suggest that it ought to be incorporated in
the Will, the Registrar may require the document to be produced and call for evidence regarding the attachment(s) or incorporation.
(3) Where there is doubt as to the date on which a Will was
executed, a Registrar may require such evidence as he
thinks necessary to establish the date.

5. Any appearance of attempted revocation of a Will by
   burning, tearing or other circumstance leading to a
   presumption of revocation by the testator, shall be
   accounted for to the Registrar’s satisfaction.

6. The Registrar may require an affidavit from a person he
   thinks fit for purposes of satisfying himself as to any of the
   matters referred to in rules 16, 17, 18 and 19, and where an
   affidavit is sworn to, by an attesting witness or other
   person present at the time of the execution of a Will, the
   deponent shall depose to the manner in which the Will was
   executed.
7. Where it appears to the Registrar that there is prima facie
   evidence that a Will is one to which section 9 of the Wills
   Act, 1837, or an equivalent enactment in force in the
   Territory applies, the Will may be admitted to proof if the
   Registrar is satisfied that it was made by the testator in
   accordance with the provisions of that enactment.
8. After a Will has been deposited in the registry by a personal
   applicant, it may not be delivered to the applicant or to any
   other person unless in special circumstances the Registrar
   so direct.

9. (1) An original Will shall not be delivered out for any
   purpose without the direction in writing of the Court where the Will is filed. (2) A certified transcript, under the seal of Court, of the probate or administration with the Will annexed may be obtained from the Court.

10. (1) An application for an order admitting to proof a codicil
    or a Will contained in a copy, a completed draft, a
    reconstruction or other evidence of its contents where the
    original Will is not available, may be made to the Registrar,
    but where a Will is not available owing to its being retained
    in the custody of a foreign Court or official, a duly
    authenticated copy of the Will may be admitted to proof
    without an Order.
    (2) The application in sub rule (1) shall be supported by an
    affidavit setting out the grounds of the application and by
    such evidence on affidavit as the applicant can adduce as
    to–
    (a) The due execution of the Will;
    (b) Its existence after the death of the testator; and
    (c) The accuracy of the copy or other evidence of the
    contents of the Will, together with any contents in
    writing to the application given by any person not
    under disability who would be affected by the grant.

11. (1) Upon the death of a testator, any person with a
    connection to the deceased may request for the opening of
    the Will by an application to the Registrar supported with a
    death certificate.
    (2) The Registrar shall notify the persons listed in Rule 1(2)
    above and family members to the opening of the Will on a
    date fixed for the opening.
    (3) On the date fixed for the opening, all parties listed shall
    be seated and the Registrar shall open and read the Will and
    thereafter issue to each person a CTC of the Will upon
    payment of a prescribed fee.
    (4) Where any property is not mentioned in the Will of a
    deceased, the proven Executors shall apply for Letters of Administration in respect of the said property and such application shall be accompanied by the Probate.

12. Where a person dies, the person(s) entitled to a grant of
    probate shall be determined in the following order of
    priority–
    (a) The executor;
    (b) Any residuary legatee or devisee holding in trust for
    any other persons;
    (c) A residuary legatee or devisee for life;
    (d) A residuary legatee or devisee whose legacy is vested
    in interest;
    (e) The ultimate residuary legatee or devisee, including
    one entitled on the happening of a contingency or,
    where the residue is not wholly disposed of by the Will,
    (i) A person entitled to share in the residue not
    disposed of by Will, or his personal representative;
    (ii) A legatee or devisee entitled to a share in the estate
    disposed of;
    (f) A specific legatee or devisee or creditor, a personal
    representative of any such person or, where the estate is not
    wholly disposed of by Will, any person who,
    notwithstanding that the amount of the estate is such that
    he has no immediate beneficial interest in it, may have a
    beneficial interest in the event of an accretion to it;

(g) A specific legatee or devisee entitled on the happening
of a contingency, or a person having no interest under the
Will of the deceased who would have been entitled to a
grant if the deceased had died wholly intestate.

(2) Where the residue is not in terms wholly disposed of,
the Registrar may, if satisfied that the testator has disposed
of the whole or substantially the whole of the estate as
ascertained at the time of the application for the grant,
allow a grant to be made to any legatee or devisee entitled
to, or to a share in the estate so disposed of, without regard
to the persons entitled to share in a residue not disposed of
by the Will.

13. On receipt of an application for grant of probate, the
    Registrar shall grant probate to the executor(s) or such
    other persons in accordance with these Rules.
14. (1) Where all persons entitled to the estate of a deceased
    under a Will have assigned their whole interest in the estate
    to one or more persons, the assignee or assignees shall
    replace in order of priority for a grant of probate, the
    assignor, or if there are two or more assignors, the assignors
    with the highest priority, in the absence of a proving
    executor.
    (2) Where there are two or more assignees, probate may be
    granted with the consent of the others to any one or more
    (not exceeding four) of them.
    (3) Where probate is applied for by an assignee, a copy of
    the instrument of assignment shall be lodged in the
    Registry.

15. (1) Where one of two or more executors is an infant, probate
    may be granted to the other executor or executors not
    under disability, with power reserved for making a similar
    grant to the infant on his attaining the age of 18 years and
    administration for the use and benefit of the infant until he
    attains the age of eighteen years may be granted under Rule
    31, if the executors who are not under disability renounce
    or on being cited to accept or refuse a grant, fail to make an
    effective application accordingly.
    (2) An infant executor’s right to probate on attaining the age
    of eighteen years may not be renounced by any person on
    his behalf.
16. (1) An original Will, of which probate or letter of
    administration with Will annexed is granted, shall be filed
    and kept in the Registry, in such manner as to secure the
    due preservation and convenient inspection of it.
    (2) A copy of every such Will and of the probate or letter of
    administration shall be preserved in a book kept for the
    purpose in the Registry.

17. (1) An application for an order requiring a person to bring
    in a Will or to attend for examination may, unless a probate
    action has been commenced, be made to the Court by
    summons, which shall be served on such person.
    (2) An application to the Court for the issue of a subpoena
    to bring in a Will, shall be supported by an affidavit setting
    out the grounds of the application and if any person served
    with the subpoena denies that the Will is in his possession
    or control, he may file an affidavit to that effect.

18. (1) Where copies are required of original Wills or other
    documents deposited under the provisions of a written
    law, such copies may be under the seal of the Registry and
    issued as office copies and where such office copies are not
    available, copies certified under the hand of the Registrar to
    be true copies, shall be issued only if it is required that the
    seal of the Court be affixed to it.
    (2) Copies, not being Photocopies of original Wills or other
    documents deposited, shall be examined against the
    documents of which they purport to be copies, if required
    by the person demanding the copy and in such case the
    copy shall be certified under the hand of the Registrar to be
    a true copy and may, in addition, be under seal of the Court.

19. (1) A person having in his possession or under his control a
    paper or writing of a deceased, being or purporting to be
    testamentary, shall promptly deliver its original to the
    Registrar.
    (2) Where a person fails to deliver any paper or writing of
    any deceased person within 14 days after having
    knowledge of the death of the deceased, he shall be liable to
    a fine not less than N50,000.00.
20. A Will in which an application for grant is made shall be
    marked by the signatures of the applicant and the person
    before whom the oath is sworn and shall be exhibited to an
    affidavit which may be required under this Order, as to the
    validity, terms, condition or date of execution of the Will, but where the Registrar is satisfied that compliance with this Rule might result in the loss of a Will, he may allow a photocopy of it to be marked or exhibited in lieu of the original document.

21. (1) Where the Registrar considers in a particular case a
    photocopy of the original Will would not be satisfactory for
    purposes of record, he may require an engrossment
    suitable for photocopy.
    (2) Where a Will contains alterations which are not
    admissible to proof, there shall be lodged an engrossment
    of the Will in the form in which it is to be proved.
    (3) An engrossment lodged under this Rule shall reproduce
    the punctuation, spacing and division into paragraphs of
    the Will and if it is one to which sub-rule (2) applies, it shall
    be made bookwise, on durable paper following
    continuously from page to page.
    (4) Where any pencil writing appears on a Will, there shall
    be lodged a copy of the Will or of the pages or sheets
    containing the pencil writing, in which there shall be
    underlined in red ink those portions which appear in pencil
    in the original.
22. Where a gift to a person fails because he is an attesting
    witness or the spouse of an attesting witness, that person
    shall not have a right to a grant as a beneficiary named in
    the Will, but shall have his right to a grant in any other
    capacity preserved.

[/membership]