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The executor/executrix must apply to the court for a grant of probate after the testator dies, that is, if he dies leaving a will. After grant of probate is made, the property of the deceased can be distributed. The application is dealt with under the non-contentious powers of the Court. This means that the Registrar of the High Court peruses the application and supporting documents and approves the grant.{{more}}

Where there is some conflict with regard to the will, it becomes a contentious matter and has to be heard by a High Court Judge.

Where there are two or more wills, it is the latest will that will be accepted to probate. A codicil is not a will. It is made after a will is made to add to the wishes of the testator, to provide more information by way of explanation or to revoke parts of the will.

When a codicil is made, it means that it would be interpreted alongside the most recent will.

The will is executed when the testator signs the will in the presence of one or two witnesses. He can, however, acknowledge his signature to a second witness. This means that the two witnesses do not have to witness the will at the same time.

The will must be in writing and the testator’s signature must be affixed. However, a will which ended with “your loving mother” was accepted to probate. The signature must be carried at the foot or at the end of the last page. The testator’s mark (an “X”) could be made instead. When the testator dies, the witnesses would be called upon to indicate that they did see the testator sign.

The probate section of the court processes the will and makes a grant to the executor (male) or executrix (female) who is the personal representative. He or she is regarded as a trustee when a gift is left in trust for a minor.

If for some reason the testator loses his will, he can make another without any adverse effects.

If for some reason the testator changes his mind about the way he has allocated his property, he can revoke his will by burning, tearing or destroying it. He can do it for himself or direct some one to do so in his presence. He must have the intention to revoke it. Where it was done by mistake, and the pieces were kept, a will was admitted to probate.

A valid marriage would revoke a will unless it was made with the expectation of marriage. That is, if a gift is made in contemplation of marriage, it would be valid even after the marriage. This must be conveyed in the will.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com

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