On 1st September 2023, Parliament enacted Statutory Instrument No. 37 (the “Probate Rules” or the “Rules”). The codification of the Rules is a positive step as it promotes uniformity in practice. The rules are now applicable to every probate application currently before the Zambian Courts.
Some salient features of the Probate Rules include the following
Introduction of the Probate Registry- Rule 4
The Rules have introduced the Probate Registry, giving the Chief Justice the authority to establish one at any place he deems necessary
Time Restrictions for Application for a Grant- Rule 7
An application for a grant of probate must be made within 12 months from the death of the Testator. It is also a requirement that such an application must be advertised in a newspaper enjoying wide circulation. Any objection to the grant must be made within 14 days from the date of advertisement. Notably, a person may apply for extension of time where the time period for making the application has elapsed[1].
Withdrawal of renunciation- Rule 14(2)
An executor who renounces the right to a grant may make an application before the Registrar to withdraw the renunciation by filing a summons and an affidavit in support of the application. Previously, while the Rules made provision for renunciation of the right to a grant, there was no option to withdraw the said renunciation.
Resealing of a grant issued outside the Republic- Rule 23
A personal representative to whom a grant is made or that person’s practitioner may apply to the court for the resealing of a grant issued by the court outside the Republic by filing an originating summons and an affidavit in support of the application. The personal representative shall advertise a notice of resealing in Form XI set out in the Schedule in a daily newspaper of general circulation and exhibit the same in the affidavit in support of the application.
The Wills Register- Rule 27
The Registrar is now mandated to establish and maintain a wills register containing the name of the testator; serial number assigned to the will; and the date of deposit of the will at Court.
Furnishing of Translation- Rule 28
Where a will is written in a language other than English, a translation made by a competent person shall be exhibited in the application for a grant with a verification of the translation in Form XII set out in the Schedule. Previously, the law did not require for an interpretation of the will to be furnished to the Court.
Form of Proceedings- Rule 31
Where there are matters in contention between the Parties in relation to a will, the action is commenced by way of Writ of Summons and Statement of Claim.
Application to Sell- Rule 32
Previously, executors were at liberty to dispose of property of the estate without seeking the leave of court. The position was that where a personal representative considers that a sale of any of the property forming part of the estate of a deceased person is necessary or desirable in order to carry out his duties, the administrator may sell the property in such manner as appears to him likely to secure receipt of the best price available for that property[2]. However, the rules now require that Personal Representatives are to make an application to the Court for the sale of the property forming part of the testator’s estate by filing summons and affidavit in support of the Summons. The affidavit must contain proof of the following;
- the grant;
- proof of ownership of the property by the testator; and
- consent to sell from the beneficiaries, if any.
Saving of the inherent Powers of the Court- Rule 36
Nothing in the rules affects the inherent powers of the court to make orders in the interest of justice. The implication of this provision is that the Courts are not bound by strict rules of procedure.
Conclusion
The promulgation of the Probate Rules is a welcome development as it provides a level of uniformity in the procedural aspect of the management of testate estates. Some noteworthy provisions include the introduction of the probate registry, resealing of grants granted outside the Republic as
[1] Ibid, Rule 34.
[2] Section 45(2) of the Wills and Administration of Testate Estates Act, Chapter
