RECOGNITION OF FOREIGN WILLS AND PROBATE JUDGMENTS IN NIGERIA

CONTRIBUTOR: OLUGBADE JOHNSON

1. INTRODUCTION

In the era of globalization, cross-border ownership of assets, transnational marriages, and international migration have significantly reshaped private law relations. Individuals increasingly hold property in multiple jurisdictions, maintain residences abroad, or enter into transactions that span different legal systems. With this reality comes the legal challenge of administering estates that extend beyond national borders. Specifically, the recognition of foreign wills and probate judgments has emerged as a critical issue for courts and practitioners alike.

A will is a testamentary instrument through which a person expresses how his or her estate should be distributed upon death. Probate, on the other hand, is the judicial process by which a court confirms the validity of a will and authorizes the executor to administer the estate. When a testator executes a will abroad, or a probate judgment is obtained in another jurisdiction, the enforceability of such instruments in Nigeria becomes a matter of private international law. Questions arise: Will Nigerian courts recognize and enforce a foreign will or probate grant? What procedural and substantive requirements govern such recognition? Are there limits to the doctrine of recognition?

This article examines the recognition of foreign wills and probate judgments in Nigeria, analyzing the legal framework, procedures, substantive conditions, and possible grounds for refusal. By clarifying these issues, the study aims to illuminate the interface between domestic succession law and transnational estate planning, an area that is increasingly relevant in practice.

LEGAL FRAMEWORK GOVERNING RECOGNITION IN NIGERIA

The recognition of foreign wills and probate judgments in Nigeria is governed by a combination of statutory provisions, judicial precedents, and principles of private international law. These frameworks aim to balance respect for foreign judicial acts with the preservation of Nigeria’s legal sovereignty.

1. STATUTORY FRAMEWORK: The Wills Act 1837 (as applicable in Nigeria),^[1] the Wills Law of various states, and the Administration of Estates Law provide general rules on testamentary succession. However, none of these statutes comprehensively regulate the recognition of foreign wills. Instead, recognition is guided by principles under the Evidence Act 2011 (as amended),^[2] which allows for the admissibility of foreign judgments, the Probates (Re-sealing) Act, 1966, which regulates the resealing of probate or letters of administration granted in Commonwealth countries, or another state,^[3] and the Foreign Judgments (Reciprocal Enforcement) Act,^[4] which provides a statutory basis for registering and enforcing certain foreign judgments.
2. Principles of Private International Law: The doctrine of lex situs (law of the place where property is situated) plays a decisive role.^[5] For immovable property, Nigerian courts apply Nigerian law, regardless of the validity of a foreign will. However, for movable property, the law of the deceased’s domicile at death is generally applied. This means a foreign will covering movable property may be recognized, but one purporting to dispose of Nigerian land may face challenges if inconsistent with Nigerian law.

PROCEDURAL AND SUBSTANTIVE REQUIREMENTS FOR RECOGNITION

Recognition of foreign wills and probate judgments in Nigeria is not automatic. Both procedural and substantive requirements must be satisfied before Nigerian courts will give effect to them. However, the procedural requirements vary per jurisdiction i.e. whether the foreign country is a commonwealth country or not.

1. Commonwealth Countries

Foreign wills and probate judgments granted by a court of competent jurisdiction in a commonwealth country may be enforced in Nigeria through a process known as resealing under the Probates (Re-sealing) Act, 1966.

1. Who May Apply

Applications for resealing may be made by:

1. The executor named in the will;
2. A person entrusted with administration by the court of the deceased’s domicile; or
3. A person beneficially entitled to the estate by the law of the place of domicile.

Where there are multiple executors or administrators, they must act jointly in applying for resealing. The Supreme Court in Eyibo v. Mujaddadi & Ors.^[6] confirmed that joint personal representatives must act together, unless the court orders otherwise.

1. Conditions for Resealing

Before resealing, the High Court must be satisfied that:

1. Probate duty has been paid in respect of assets located in the resealing state;
2. In the case of letters of administration, sufficient security has been provided to cover local property;
3. Certified copies of the original grant and any will are lodged;
4. An affidavit of domicile and supporting documents (such as tax clearance certificates) are filed; and
5. The application is advertised as directed by the judge.

Some state rules (e.g., Lagos and Abuja) also require sureties in special circumstances.

1. Effect of Resealing

Once resealed, the grant is treated for all purposes as if it had been issued by the resealing High Court. Executors or administrators may therefore deal with Nigerian property without seeking a fresh grant. Nigerian courts have affirmed the validity of resealing. In Nyianaka v. Anyika, the Court of Appeal confirmed that resealing operates under the Probate (Resealing) Act.^[7] Also, in Ogbuehi v. Nnaji & Ors, the Court of Appeal upheld resealing of a Commonwealth grant in Nigeria.^[8] Additionally, In Eyibo v. Mujaddadi & Ors, the Court emphasised that joint administrators must act together in resealing applications.^[9]

NON-COMMONWEALTH COUNTRIES

Foreign wills and probate judgments from non-Commonwealth countries cannot be resealed. Such grants may only be recognised, if at all, under section 60 of the Evidence Act and principles of private international law.

1. Procedural Requirements

1. Authentication and Proof – The foreign judgment or will must be properly authenticated, certified, and translated (if not in English). Section 104 of the Evidence Act requires foreign documents to be certified according to the law of the foreign country.

2. Filing of Application – The party seeking recognition must apply to a Nigerian court (often the High Court of a state) to register or recognise the foreign probate judgment.

3. Service of Notice – Interested parties (such as heirs or creditors) must be notified of the application to prevent ex parte enforcement that prejudices local rights.

4. Time Limits – Under the Foreign Judgments (Reciprocal Enforcement) Act, judgments must be registered within six years of delivery, unless extended.

1. Substantive Requirements

1. Jurisdiction of Foreign Court – The foreign court that granted probate must have exercised proper jurisdiction, usually tied to the domicile or residence of the deceased.

2. Final and Conclusive Judgment – The judgment must be final and not subject to appeal. Interlocutory or provisional grants may not be recognised.

3. Consistency with Nigerian Public Policy – Nigerian courts will refuse recognition where enforcement would contravene local public policy, such as laws prohibiting testamentary disposition of family property under customary law.

4. Absence of Fraud – Probate grants obtained through fraud or misrepresentation will not be recognized.

5. No Conflict with Nigerian Statutes – Wills that attempt to dispose of land in Nigeria contrary to the Land Use Act or customary law restrictions may not be enforced.

GROUNDS FOR REFUSAL OF RECOGNITION

Despite the presumption in favor of recognizing foreign probate judgments, Nigerian courts may refuse recognition on several grounds.

(a) Lack of Jurisdiction: If the foreign court lacked jurisdiction over the deceased’s estate or domicile, its probate grant will not be recognized in Nigeria.

(b) Fraud: Probate grants obtained by concealment of material facts, false representation of heirs, or forged wills will not be recognized, consistent with general principles of justice.

(c) Public Policy: Recognition will be denied where it violates Nigerian public policy. For example, wills attempting to bequeath family land contrary to customary law may be struck down, as in Idehen v. Idehen.^[10] Similarly, dispositions that contravene the Land Use Act or laws against perpetuities may be invalidated.

(d) Conflict with Local Succession Laws: Where a will purports to distribute Nigerian immovable property in a way inconsistent with Nigerian statutory or customary succession law, Nigerian courts may refuse recognition. For instance, if a foreign will disregards the rights of surviving spouses or children protected under Nigerian law, recognition may be denied.

(e) Procedural Defects: Failure to comply with certification, registration, or limitation period requirements can bar recognition.

CONCLUSION

The recognition of foreign wills and probate judgments in Nigeria reflects the intersection of domestic succession law and international private law. While globalization has made cross-border estates common, Nigerian law provides a cautious framework for recognition, balancing respect for foreign judicial acts with the protection of domestic legal principles.

Ultimately, Nigerian jurisprudence demonstrates a willingness to recognize foreign wills and probate judgments, provided they align with Nigeria’s legal order. For practitioners, careful estate planning that anticipates cross-border recognition issues is crucial. For policymakers, there may be merit in developing clearer statutory frameworks to streamline recognition and reduce litigation.

In sum, the recognition of foreign wills and probate judgments ensures that individuals’ testamentary intentions are respected across borders, while safeguarding Nigeria’s sovereignty and the rights of local beneficiaries.

REFERENCE

1. Wills Act 1837. ↑
2. Evidence Act 2011 (as amended). ↑
3. CAP. P31, LFN 2004. ↑
4. CAP. F35, LFN 2004. ↑
5. Ese Nkadi, ‘Nigeria: International Estate Planning Guide’ International Bar Association (1 September 2012). https://www.ibanet.org/MediaHandler?id=5DF8EC82-FBFE-4F90-BA9D-940B0E8301FD accessed 26 August 2025. ↑
6. (2021) LPELR-57110 (SC) ↑
7. (2021) LPELR-52817 (CA) ↑
8. (2015) LPEL-25992(CA). ↑
9. (2021) LPELR-57110 (SC). ↑
10. (1991) 6 NWLR (Pt. 198) 382. ↑