Description
Limitation of time to file petition for probate – caveat in probate and administration proceedings – attestation of a caveat – overriding objective – substantive justice.
- The law of limitation is not strictly applicable in matters of probate (p. 5).
- In any case where a probate or administration is for the first time applied for after expiration of three years from the death of the deceased, the petition shall contain a statement explaining the delay (5).
- A caveat (in probate and administration proceedings) is a formal notice or warning given by a person interested in the deceased’s estate to a court or court officer, requesting a suspension of proceedings (p. 9). The warning is intended to inform the court, among other things, that, the caveator has an interest in the estate of the deceased and would like to be heard by the court in defending his/her interests, before it grants the petition (p. 10).
- A caveat need not be sworn or affirmed since it is not a piece of evidence in any way (p. 10). The caveat has to be attested for purposes of confirming the identity of the person who made the contents of the caveat (p. 10).
- There may not be a specific format for attesting a document (p. 10), however, any document needing to be attested must conspicuously show that the same was witnessed by an authorized person in view of confirming the identity of the person making and signing it (pp. 10 – 11).
- Where the law requires an instrument to be attested, it is not necessary that such an instrument should also be sworn or affirmed (p. 11).
- A caveat which is sworn or affirmed is not fatal. Expunging that caveat will have the effect of denying the caveator access to justice and a right to be heard. It will amount to violation of the principles of natural justice and denying the caveator of her right to fair trial (p. 13). Remedy is to amend the caveat (p. 15).
- Principle of the Overriding Objective requires courts to deal with cases justly, speedily and to have regard to substantive justice. The principle also tries to avoid prioritization of procedural technicalities in the process of justice administration (p. 14).
