SUCCESSION NOTES PREPARED BY PAUL KAMARA

DEFINITION OF SUCCESSION

Succession concerns transfer of property on death through disposition by Will and Succession in
Intestacy. It involves taking over someone‟s property who is either dead or inter vivos; *taking
after somebody when the person dies, and * taking after somebody inter vivos (when he is alive).
Many of the cases are contest between those entitled under a Will and those under Intestacy.

Taking after someone who is dead involves two types, testacy and intestacy. Testacy is where
someone succeeds with a documentary evidence call a will. Intestacy comes about where there is
no will.

RULES OF INTESTACY

1.Property capable of being left by a Will

2. It does not apply to Joint property which passes by Survivorship

3. It does not apply to life policies whether in trust or the subject matter of Donatio Mortis
Causa.

WHY INTESTACY?

1. A deceased without a Will

2. To share the estates of a deceased not disposed of by a Will.

PARTIAL INTESTACY

1.When the whole of the deceased is not disposed off due to no residuary gift.

2. When beneficiaries under the residuary gift predeceased the Testator.

FULL INTESTACY OCCURES:

1. Testator dies without making a Will

2. There is an existing Will but declared invalid due to lack of capacity of or defective Will.

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3. A Will was made but revoked.

4. Beneficiaries predeceased the Testator.

5. A Will is made but does not dispose of any property- Re Skeates

WILLS

A will is a legal document that expresses the intention of the manner in which a person(s) could
succeed the testator/person giving out the property after death. The Wills Act 1837 prescribes the
formalities involved in executing a will.

NATURE AND CHARACTERISTICS OF A WILL

According to T Jarman „Treaties on Wills‟, a Will is an „instrument by which a person makes a

disposition of his property to take effect after his decease and which is in its own nature
ambulatory and revocable during his life.

Two key features have been identified in the above definition.

1. Wills are ambulatory-The Will has no effect until after the death of the Testator. A Will
cannot confer actual benefits. The testator has the right to use the property in the Will.

2.Wills are revocable. This shall be dealt with later.

3. FORM, INTENTION, AND CAPACITY: According to Halsbury‟s Laws of England (4th

edition,1984), a Will is „the declaration of in a prescribed manner of the intention of the person
making it with regards to matters which he wished to take effect upon his death‟. A will must
conform to the manner prescribed in Section 9 of the Wills Act, 1837( with the exception of
Privilege Wills as provided in Section 11 of the Wills Act, 1837 and Donatio Mortis Causa i.e.
gifts given in contemplation of death as in Cain v Moon).

FORMALITIES OF A WILL

1.) Writing – The 1978 Interpretation Act of England states that writing includes printing,
lithography, photography, or modes of producing words in visible forms. The first formality is
that it must be in writing. Any form or type of writing suffices whether in ink or type-written or

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both may suffice as was in the case In the Goods of Adams. A pencil writing over a written will
is presumed to be merely deliberate and could be excluded from probate (a process by which a
will is administered) unless it appeared to be intended and operative. It must be noted that no
special form of words need to be used when writing a will but that it must be an intelligible
document which indicates the intention of the testator to make a will. In the case of Re Meynell
(1949) W.N. 273, probate was granted of written instructions to a solicitor which had been duly
witnessed because of fear that the testator might suddenly die. Also, language does not matter as
was held in Whitening v Turner.

2.) The Will must be signed by the Testator – This is a necessary requirement for a will. A will
must be signed by the testator or someone else for him in his presence and by his direction. A
name or some mark intended to represent that name is acceptable as was held in Hindmarch v
Charlton. The signature could be made in any way as long as there is an intention to execute the
will. It could be an ordinary mark, an ink stamped, name, a formal signature or an assumed
name. An ordinary seal on the will is not enough as the will must be signed by the testator. Also,
there is no strict formality as to how the signature should appear. Even words can suffice hence it
is intended by the Testator as was held In the Estate of Cook.

3.) Position of the signature – According to Section 9 of the Wills Act 1837, the signature of the
testator has to be at the foot or at the end of the will as in Re Stalman . Section 9 states:

„‟No will, shall be valid unless it shall be in writing and executed in manner herein after
mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator, or by
some other persons in his presence and by his direction…‟‟

The Law Reform No. 22 of England and Wales has abolished this principle as it provides that the
signature can be at any part of the will once it appears that it is intended to give effect to the will.
In Weatherhill v Pearce (1995), a signature on an envelop containing a Will was validated. This
decision was overturned in Re Beadle as it was held that, signature on an envelope was
insufficient to validate a Will.

4.) Presence of witnesses (Physical and mental presence) – Section 9 of the wills Act 1837
further provides that the testator must make the whole of his signature or acknowledge it at the

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presence of two witnesses present at the same time: „‟...and such signature shall be made or
acknowledge by the testator in the presence of two witnesses present at the same time...”

Where the signature of the testator is made by someone else under his direction and in his
presence and the presence of the witnesses, the person directed need not to be there for
acknowledgement of the signature by the testator, but that the signature must be made in the
simultaneous presence of both witnesses Re Goffman. It is immaterial that the witnesses do not
know that the document is a will. It is also desirable though not essential for witness to be of full
age and intelligence. The standard that is used to determine physical presence is the Line of
Sight Rule as was held in Shires v Glascook.

5.) Signature of witnesses – The witnesses must sign in the presence of the testator. In this
regards Section 9 of the Wills Act 1837 further provides:

‟‟...and such witnesses shall attest and shall subscribe the will in the presence of the testator
but no form of attestation shall be necessary.‟‟

It is true that no form of attestation is necessary but the signature of the witnesses when done
should be satisfactory of the statutory requirement that will facilitate probate. A will that does
not satisfy the above requirement is not valid and of no effect.

WHO MAKES A WILL?

Section 7 of the Wills Act 1837 provides that, a valid will can be made by any person who is:

a. Over 18 years of age; and

b. Capable of appreciating what he or she is doing.

Thus an infant cannot make a will unless according to Section 7 of the aforementioned Act, he or
she is a service man or woman entitled to make a privilege will. A will cannot be made by a
person who at the time he makes the will is mentally incapable by reason of physical sickness,
drunkenness or unsoundness of mind. The most basic test for unsoundness of mind is:

Did the testator understand the nature of the act and its effect; the extent of the property of which
he was disposing; and the extent of the claims upon his bounty to which he ought to give effect?

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Hence the familiar phrase in wills and cases about will is that the deceased „was of sound mind,
memory and understanding‟. With the constant development of medical knowledge however,
questions of mental capacity often creates extreme difficulty of facts. It may sometimes be very
difficult in particular cases to assess the testamentary capacity of the testator at the material time.

Nevertheless, an affliction of the mind will invalidate the will only if it relates to considerations
relating to the will. In the case of Bank v. Good Fellow (1870) L.R. 5 Q.B. 549 at Pg. 565; Chief
Justice Cock Burn said:

“...a degree or form of unsoundness which neither disturbs the exercise of the faculties
necessary for such an act, nor is capable of influencing the result, ought not to take away the
power of making a will.”

However, in the case of Re Bohrmann (1938) 1 All E.R. at Pg. 271, the testator was found to be
in the form of delusion which affected only one part of the dispositions of his will. The judge
decided in effect that the testator may have testamentary capacity to make the greater part of the
will and yet be incapable of making one specific bequest.

If a will appeared on the face of it to be rational, it will be presumed to have been made by a
reasonable testator. If however the will is challenged on the ground of incapability the burden of
proving that the testator had a sound disposing mind lies in he who seeks to establish the validity
of the will. So important is the question of capacity that, it is surprising that there are no statutory
requirements or other requirements about contemporary medical or other evidence of fitness in
case of old or infant testators.

TESTAMENTARY INTENTION

For a will to be valid the intention of the testator in making the will and the intention of making a
particular disposition must be voluntary. Where this is not, a will might be opposed „‟for want of
Knowledge and Approval‟‟. This means literary that, at the execution of the will the testator do
not know the content or did not approved them.

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In the case of incapacity of the testator, if no suspicion is attached to the will, then proof of
proper execution of the will is taken as sufficient evidence. If however, suspicion arises, then the
burden of removing such suspicion lies in the person proving the will. In the case of Wintle v.
Nye [1959] 1 All E.R. 552, it was held that, the degree of the burden of dispelling or disproving
the suspicion is as great as the amount of suspicion. In this case, Colonel Wintle conducted his
own case before the House of Lords and reversed the decision of the Court of Appeal. The
testatrix who was then 66 years of age and in diverse businesses executed a will drown by her
solicitor Mr. Nye by which she appointed Mr. Nye to be the sole executor and left to him the
residue of her estate, which at her death was worth 115,000 pounds. Lord Simmons said:

„‟the degree of suspicion will vary with the circumstances of the case; it may be slight and
easily dispel. It may on the other hand be so grave that it can hardly be removed. In the
present case the circumstances where such as to impose on the solicitor as heavy a burden as
can be imagined‟‟

Another situation in which “want of knowledge and approval‟‟ is raised in opposing the will is
on the ground of undue influence. Undue influence here briefly means an influence exercised by
coercion, fraud or other improper means. It is always a difficult allegation to establish. The
burden is a heavy one. Once there is a prima facie proof of capacity of execution and knowledge
of approval, the burden to prove undue influence rest upon those alleging it. Like the case of
Wintle v. Nye supra, the allegation there amounted to undue influence although the objection was
formally on the grounds of „‟want of knowledge and approval‟‟ There is undue influence if the
other party imposes his will in every sense upon the testator‟s free wish. Undue influence must
be the only possible explanation before it was so found. The varying influences of everyday life,
strength of character, appeal to pity and affection, do not alone constitute undue influence. In the
case of Hall v. Hall (1868), the testator who was a farmer left property worth between 15,000
and 20,000 pounds. His widow propounded the will and the testator‟s brother alleged that the
testator had made his will because of his wife‟s violence and threat for the sake of peace and
quietness. The case was heard before the jury and the probate Judge directed them in the
following terms:

„‟To make a good will, a man must be a free agent. But not all influences are unlawful.
Persuasion, appeals to the affections, or ties of kindred, to a sentiment of gratitude for past

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services, or a pity for future destruction or the like–these are all legitimate and may be fairly
pressed on the testator. On the other hand pressure of whatever character, weather acting on
the fears or the hopes, if so exerted as to overpower the volution without convincing the
judgment is a species of restrain under which no valid will can be made‟‟

Lord Coockburn established the degree of mental competence required in Banks v Goodfellow
1870. He established four criteria:

1.Nature of the business

2.Recollection of the Property

3.Objects of his Bounty

4. Manner of Distribution

BLIND OR ILLITERATE TESTATOR

It is in practice that the will should be read over to a blind man or an illiterate for his
understanding and approval. This is however strictly not necessary as a will of such a testator
will be admitted to probate if it is proved to have been prepared in accordance with the wish of
the testator. The same consideration may be applied to cases of dumb, and deaf, paralyzed from
apoplectic stroke testators.

PRESUMPTION OF REGULARITIES

The presumption that “all things are presumed to have been done rightly” is applicable in all
branches of law. In relation to the Wills Act, it supports the due execution of the will whether the
will appears to have been properly executed; see the case of Re Denning (1958) 2 All E.R. 1.
This presumption was however rebutted in the case of Re Strong (1915) Pg. 211 and Re Peverett
(1902) Pg. 205.The presumption in Re Denning followed in the reasoning of Re Peverett. In Re
Denning, MR Justice Sachs quoted with approval the words of Sir Francis Jenne in the case of
Re Peverett:

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„‟Two things may be laid down as general principles; the first is that, the court is always
extremely anxious to give effect to the wishes of the person if satisfied that they really are their
testamentary wishes; and, secondly, the court will not allow a matter of form to stand in the way
if the essential element of the execution have been fulfilled‟‟

ALTERATION, OBLITERATION, INTERLINATION AND ERASURE

For this aspect see Section 21 of the Wills Act 1837. This Section deals with alterations made
after execution and it has the following effect only if:

(a.) They are executed in accordance with Section 9 of the Wills Act 1837;
(b.) They are alteration signed as required by the second part of Section 21; or
(c.) If the alteration is an obliteration of the original word or effect of the original word “are
no longer apparent”, in which case the obliteration is of necessity effective.

In practice it is not usually best to alter a will if after its execution it is desired for change. The
safest way is to make a new will.

It is important to note that the phrase “no longer apparent” is now different in use as it was in
1837 due to technological advancement. Words which were no longer apparent in those days
may well be apparent now with the aid of technology as certain tools have been evolved for
deciphering erased or altered documents. The test however appears to be that, any scientific or
technological technique used to aid in determining the original meaning of the words in the will
should not involve physical operation upon or tampering with the document itself. In Re Gilbert
(1893) Pg. 183, paper posted over words on the back of a codicil was removed but merely for the
purpose of seeing whether they are words of revocation.

A Will that has been revoked cannot be revived by cancelling the revocation. Also, the fact that
part of the will is written in different ink or hand writing to the rest does not necessarily makes it
an alteration. In the case of Re Itter (1950) 1 All E.R. 68, the question was whether the original
words were apparent within the meaning of Section 21. The hand writing expert cannot remove
the piece of paper because it will involve tampering with the document. He therefore had to take
infrared photo of the area of the document to reveal the original figure underneath the
handwriting. It was held that the original figures were no longer apparent because apparent here

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was meant apparent in the face of the will itself. If however, by looking at the document itself,
the human eye can see the original then they are still apparent however elaborate the device used
to assist the human eye. In this particular case the original words were no longer apparent as the
only way was to transpose the document into another document.

If the entire bequest is obliterated it is clearly revoked in its entirety, If however part of a bequest
is revoked, e.g. the amount or name of a beneficiary, then the effect of the erasure will be
governed by the doctrine of “dependent relative revocation”

OFFENSIVE OR LIBELLOUS WORDS USED IN A WILL

The court has power to exclude from probate words or passages in a will which are offensive or
libelous. In Re Bowker (1932) Pg. 93, the court directed that a copy of the will admitted to
probate should exclude certain passages in which the testator had given direction for the disposal
of his body because they were offensive to his family and would have been broadcasted in the
press and particularly in the area he lived.

In Re White (1914) Pg. 153, the court also deleted a passage in the will by which a testator gave
a derogatory and offensive explanation of leaving nothing for his wife. The offending words are
not expunged from the will itself, but ordered to be omitted from probate and from subsequent
copies of the will.

A testator has right to give reasons why he has disposed of his property in a certain way, but he
has no right to use his will as a means of injuring by words which has no bearing upon his
disposition.

This jurisdiction of the court is often exercised cautiously and it is often invoked through a
motion. In the case of Re Bohrmann (1938) 1 All E.R. 271, it was held that the court of probate
has power only to omit words but has no power to add words to a will.

REVOCATION OF WILL

See Section 20 of the Wills Act 1837.There are four ways of revoking a will. These are:

1. Marriage

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2. A later will or codicil

3. A written declaration of intention to revoke executed in a manner of a will

4. Intentional destruction

1.) Marriage – Section 18 of the Wills Act 1837 provides that “every will made by a man or
woman shall be revoked by his or her marriage.” There are however certain radical exception
made by this Section, but a further exception is that made by Section 177 of the Law of Property
Act 1925, which provides that, “A will expressly made in contemplation of marriage shall not
withstanding anything in Section 18 of the Wills Act 1837…not revoked by solemnization of a
marriage contemplated.” This applies to wills made after 1 st of January 1926. The will must
specify the particular marriage contemplated. It is not enough that the will is merely in
contemplation of marriage in general.

2.) A Latter Will or Codicil – A latter will or codicil may revoke a previous will only if it
expressly say so or if it does so by clear implication.

3.) A Written Declaration of Intention to Revoke – A written declaration of intention to revoke

executed in the same manner as a will may also revoke a will. This principle was applied in the
case of Re Spacklan‟s Estate (1938) 2 All E.R. 245. A testatrix made a will and deposited it at
her bank. About a month later when she was seriously ill, she signed a letter to the bank manager
in which she asked him to destroy the will. Her signature was witnesses by two people as
required by Section 9 of the wills Act. It was held by the court that the destruction of the will by
the bank manager would not itself have been a revocation because it was not done in the
presence of the testator. The question was whether the request to destroy the will amounted to a
declaration of intention to revoke it. The court of appeal held that the will was revoked although
the Master of Rolls seem doubtful that the intention could be inferred in the absence of an
express reference to revocation or at least much more forceful language.

4.) Intentional Destruction – Here the testator must have intended to revoke the will. The
destruction must be by the testator or at his direction and in his presence. If it was not the
testator‟s prior consent, he cannot subsequently ratify the instructions. In Gill v. Gill (1909) 157,
the testator‟s widow said she had torn up his will in temper after he had made a remark to her

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when he was drunk. He had not authorized her to do so but there was some evidence that he later
knew what she had done but did nothing about it. It was held that whatever the testator did or
said afterwards could not ratify an act done without authority at the time. Where a lost will is last
known to have been in the possession of the testator and cannot be found after his death, there is
a presumption that he destroyed it „animo revocandi‟ meaning „with intention to destroy‟.

This presumption can of course be rebutted by surrounding circumstances and cases of lost will
give rise to different question of fact. Because revocation by destruction depends upon the
presumed intention of the testator, a will cannot be revoked in this manner by a person of
unsound mind. Similarly, in cases of lost will, if the testator may have been of unsound mind at
the time he had the will, the burden of proving that he has sufficient mental capacity to revoke is
upon those who claimed it was revoked. For revocation to be effective, the destruction need not
be complete, for example where part of the will is lost, but the destruction must be sufficient to
show the intention to revoke. Merely crossing out the will by pen is not enough although it is
enough to scratch out vital parts of it with a knife is sufficient. Destruction of a will prima facie
revoked its codicil too. But the conclusiveness of this depends upon particular circumstance.

REVIVAL

A revoked will can be revived only by proper re-execution or by a properly executed codicil
which show an intention to revive it, see Section 22 of the Wills Act 1827. The intention of the
testator to revive the will must appear from the codicil or the re –executed will, but this is to be
inferred in the light of all the circumstances and evidence of these circumstances is admissible.
In Re Dawis (1957) 279, a testator made a will in favour of a lady to whom he was not married.
In October 1931 he married her and of course this revoked the will. In May 1943 he wrote on the
envelope which contains the Will: “The herein named Ethel Phoebe Horsley is now my
lawful wedded wife.” This statement was properly signed and attested in accordance with
Section 9 of the Wills Act of 1837. It was held that in the circumstance of the case, the writing in
the envelope showed an intention to revive the will. Thus the Will and the envelope were both
admitted to probate. Revoking a Will does not revive a previous Will, for instance if a Will is
made in 2000 and revoked by another Will in 2004, the 2000 Will cannot be revive by revocation
of 2004 Will. If a revoked Will is “re-published” by a later codicil, it takes effect as if made at

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the same time as the codicil and it may incorporate certain documents by references and may
also remedy other defects in the Will as originally executed.

A CODICILE

A codicil is a testamentary document supplementary to the Will and is subject to the same rule as
the Will. Although supplementary, it can supplant the provisions of the Will. A testator may
make any number of codicils as can be, and can vary or revoke part of a Will or a previous
codicil. A Will and all its codicils must be proved together. But a codicil can be challenged or
executed without rendering the Will ineffective or invalid and the later discovered codicil can be
proved separately. A codicil often republishes a Will by expressly confirming it and in such
event the Will is deemed to have been made at the date of the codicil for the purpose of
construction and interpretation of its provisions. Sometimes a codicil revokes a Will. If the only
testamentary document that can be found is a codicil without a Will, probate will be granted may
be granted to the codicil alone.

THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION

This doctrine is briefly the principle of conditional revocation. It arises where a testator is
presumed to have only intended to revoke an existing Will on the basis of a certain belief usually
the presumption that he was replacing it by an effective latter Will. Thus, if a testator makes a
latter Will, revoking his previous Will but the latter Will turns out to be invalid for some reason,
the earlier Will may be saved by the doctrine. A different example of the doctrine arises where a
Will is destroyed in the erroneous belief that it no longer effective or that an intestacy will
achieve the same result. In Re Botting (1951) 2 All E.R. 997, the testator made a Will in 1947
but in 1949 he made another Will which revoked the earlier Will. The 1947 Will remained in the
testator‟s possession but could not be found after his death and so the law presumed to be
destroyed by him “animo revocandi”. Indeed the fact he made a will in 1949 supports the
presumption. However the 1949 will was not properly executed. The judge had to decide
whether the testator should have been presumed to destroy the 1947 will irrespective of the 1949
will or to destroy it only because he believed that the 1949 will was effective.

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The judge decided that the latter was the case, that the revocation was conditional upon the
validity of the latter Will. And because the condition was not satisfied the 1947 Will stood.
Probate was therefore granted on the 1947 Will on the basis of a copy which had been kept.

MARKS AND OTHER FEATURES ON THE FACE OF A WILL THAT CAURSE

EXPLANTION

The physical condition of a Will or codicil is naturally of significant. A burned mark or tear may
have been made by the testator “animo revocandi” and so the Registry require this possibility to
be rebutted by evidence as to the state and circumstance in which the Will was found. This
evidence is often given in what is known as affidavit of plight and condition. Some larks on the
Will, example pie holes, may suggest that the testator amended or alter the Will by attaching a
codicil or a further Will and this possibility will lead to the requirement for an affidavit of search
to show that no other document could be found.

EXECUTORS

An executor is a person nominated or indicated in the Will to carry out its terms or if so limited
some of them. Anybody may be appointed as executor. Where an infant is appointed a sole
executor, grant is made to his guardian or somebody on his behalf until age 18. If the infant is
however one of several executors, the grant is issued to the others with power reserved to him
when he becomes age 21. If a person of unsound mind is appointed sole executor, a grant is
made to somebody on his behalf “for his use and benefit” until he becomes of sound mind, or if
he is one of several executors, the grant will be issued to the other with power reserved to him
when he becomes of sound mind. An executor may be appointed generally, conditionally, or
limited as to time or property etc. The executor executor‟s have first claim to a grant and probate
is granted only to an executor as distinct from letters of administration which can be taken out by
personal representatives under intestacy. If no executor is expressly nominated, it may appear
from the Will that some particular person is intended to act as executor; such person is known as
executor according to tenor. Even where the executor is nominated, it may appear from the Will
that another person in intended as an executor. He too would be known as an executor according
to tenor. Not more than four executors could be identified from a Will. The executor has the duty
of attending the funeral of the testator and administering the estate according to the general law

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according to the Will. If the testator‟s property vest in the executor automatically upon death
accordingly, an executor can before grant take any steps which do not require former proof of
title to the estate.

TYPES OF WILLS

1.) Duplicate Wills –When the Will is made in duplicate, triplicate etc. there is in fact only one
Will. It is the execution that is duplicated. Any of the copies is admissible to probate as being the
Will. Revocation of a copy of the Will revoks the whole Will. Accordingly, the absence of other
copies must be explained when a grant is claimed. If one copy was retained by the testator and
cannot be found after his death, the presumption will arise that he destroyed it “animo revocandi”

2.) Mutual Wills – Where two or more persons e.g. wife and husband agree to make a Will in
identical or similar terms in favour of each other the result is known as mutual Wills. The basis
of mutual Wills is an agreement that the survivor will not revoke his or her Will and it can
include express or implied agreement that neither party will revoke at any time. The existence of
mutual Will does not however actually prevent revocation but if there was an express covenant
against revocation. If there was express covenant against revocation and the second testator to
die revoked by subsequent Will or destruction not marriage or revocation, a claim lies against his
estate.

These are will of two or more persons contain in one document and may be mutual also. A joint
will is provable on the death of each testator as to his or her part unless it stipulates that it is not
to come in effect until the death of his survivor.

3.) Independent Or Separate Wills – Two or more consistent wills may be admitted to probate
together if it is clear that the testator intended that they should together record complete intention
and even where the second will is partially inconsistent with the first, both may be admitted to
probate if they can be read together the first be revoked only insofar as it is inconsistent with the
second.

4.) Conditional Wills – Where there is clearly a condition attached to the taking effect of a will,
probate will not be granted unless and until the condition is fulfilled. A condition is however to

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be distinguished from expression of a reason for making a will and from expressions of
possibility, see Re Vine (1907) 147.

5.) Wills Of The Same Date – These types of will tend to create difficulties sometimes. The
court often links to admit both if possible. But in cases of real doubt may decline to give probate
to both. It is therefore important to note that in making a will, it is necessary to state the date of
the will clearly and where possible even the hour

INTESTACY

 Definition
 Persons entitled of the grant of intestacy
 Distribution on intestacy
 Special rights of surviving spouse
 Administrator‟s bond
 Administrator‟s title
 Partial intestacy

GIFT INTERVIVORS

 Definition
 Persons Entitled to gift intervivos
 Differences between testacy, gift intervivos, and intestacy

1. INTESTACY

DEFINITION: Intestacy occurs when a person dies leaving no will or a valid will. It also arises
when those interested under a purported will are formally cited to propound it and failed to do so.
Partial intestacy arises when part of an estate is not dispose by will e.g. where there is an
unbequeathed residue. Representation in the case of complete intestacy is by letters of
administration. Persons entitle to grant of letters of administration are broadly those entitled to
the estate in order of entitlement. It must be however noted that, there are those special kinds of
letters of administration that are not necessarily confined to cases of intestacy e.g.:

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 1. Administration „Pendente Lite‟ (Administration Pending Suit) – this is a limited grant
given to a person entitled pending proceedings in court.
2. Administration Ad Litem (For The Purpose Of Proceedings) – it is a grant given to a
nominated personal representative.
3. Administration With Will Annexed – this is where a will is proved other than by an
executor.
4. Administration Durant Absentia – it is a grant given during the absence of a personal
representative abroad
5. Administration Ad Colligenda Bona (For Collection of the Asset) – is often an interim
grant given for collection and preservation of assets.
6. Administration De Bonis Non – is a grant given for completing administration.
7. Administration Cessante Grant – is often the grant given where a limited grant expires
and a re-grant is necessary.
8. Grant Caeterarum (Of the Rest) – is often a grant for part of the estate.

Section 2 of the Interpretation Act of Devolution of Estate Act 2007 defines intestacy as
Intestacy means a person who dies without having made a will and includes a person who leaves
a will but dies intestate regarding some beneficial interest in his real or personal estate.

“Letters of administration” means any letters of administration granted under customary laws or
by the court either generally or with a copy of the will annexed or limited in time or otherwise

PERSONS ENTITLED TO A GRANT OF INTESTACY

Persons entitled are often in order of priority as follows:

a. Surviving spouse
b. Children; including posthumous births and issues of deceased children
c. Parents
d. Brothers and sisters and issues of brothers and sisters
e. Brothers and sisters of half-blood and issues of deceased such.
f. Grandparents.

DISTRIBUTION OF INTESTACY

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The Common Law principle of intestacy is that immediately someone dies his property goes
straight to the administrator General. This is to prevent chaos. Letters of administration will be
taken out for the administration of the estate.

Where there is no body to inherit the property, it immediately goes also to the administrator
General as bona vacantia.

Section 4 of the Devolution of Estate Act 2007 provides that where a person dies intestate, and
all debts duties and other lawful expenses are paid from the estate shall be distributed as
provided for in the Act.

Section 6 of the Act provides that where the intestate is survived by a spouse with no children or
issue the whole of the estate shall devolve to the surviving spouse. But where more than one
spouse, then it shall be distributed in proportion to the duration of their marriages and other
factor such as their contribution to the estate. However, where there is family property,
chieftaincy property, and community property under customary law, such property cannot form
part of the estate.

Section 7 stipulates that where the intestate is survived by only one child and no spouse, parent,
or grandchild, the whole estate shall devolve to the surviving child. But where there is more than
one child but no spouse parent or grandchild, the estate shall devolve to the children in equal
shares.

Section 8 provides that, where the intestate is survived by a spouse, child and parent, the estate
shall be distributed in the following manner: 35% to the surviving spouse, 35% to the surviving
child, 15% to the surviving parent and 15% in accordance to customary law or Muslim law as
applicable.

Section 9 gives detail of manner of distribution specifying categories of person and what they
should benefit from the estate of the intestate.

Section 9 (1) states that where the intestate is survived by only a spouse or child or both and the
estate includes only a house, then it shall devolve to both of them and they shall own it as tenants
in common.

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Section 9 (2) however states that where there are more than one spouse or child, then the one
house shall devolve to them and they shall own it all as tenants in common.

Section 9 (3) states that where more than one house is included or involved in the estate, the
surviving spouse or child or both of them as the case may be, shall determine which of these
houses shall devolve to such spouse or child or both of them, and where they devolve to both of
them they shall hold both of them as tenants in common.

Section 9 (4) provides that the surviving spouse has the right to make the first choice and the
child shall make his later.

Section 9 (5) states where there are more than one house and more than one spouse and child,
they shall all agree among themselves as to the allocation of the houses. But if there is no
compromise then the court upon an application of an interested party the court shall have
jurisdiction to determine the allocation of such property.

Section 9 (6) states that where there is only one house and no surviving spouse then the surviving
child can take absolutely, but the surviving parent shall have the right to stay in such house for
his life time.

Section 9 (7) states that where the estate includes only one house the surviving spouse shall have
the right to stay in the house for his life time.

Section 9 (8) states that where there are more than one houses, the surviving spouse shall have
the right to stay in any one of the house, but where there is disagreement and upon an application
by an interested party, the court shall have jurisdiction to determine as to which house the right
of the spouse shall apply.

Section 10 talks about where the intestate is not survived by a child or spouse or grandchild but
by parent or brother or sister, 75% shall devolve to the parents and brothers and sisters and 25%
distributed in accordance to customary law or Muslim law as applicable.

It is important to state what Section 15 states; where there is a family property chieftaincy
property or community property which form part of the estate and which has been cohabited by

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the spouses as their matrimonial home, the surviving spouse shall have the right to reside in that
property during his lifetime.

Section 17 deals with the inheritance of personal chattel where an intestate is survived by a
spouse or child or both of them as the case may be all personal chattels shall be inherited by
them equally.

Section 18 indicates that where the estate value is less than 15 million, then it shall be distributed
in this manner:

1. First it shall devolve to the surviving spouse or child or both of them.

2. Secondly where no surviving spouse or child then it shall devolve to the parent.

3. Where there is no surviving spouse or children or parent then it goes to the surviving brothers
and sisters.

4. Where no surviving spouse, child is, parent or brothers and sisters, then it shall devolve to the
next-of-kin.

Section 26 of the Christian Marriage Act Cap 95 Laws of Sierra Leone 1960 has been repealed
by the Devolution of Estate Act 2007. Section 9 subsection 1 of Cap 96 of the Muslim Marriage
Act Laws of Sierra Leone has also been repealed.

The Second Schedule of the Administration of Estate Act Cap 45 has been repealed and replaced
by Section 8. Muslim marriage act cap 96 the eldest son of full age takes out letters of
administration or the official administrator. A person is considered of full age if he is marriage.

The caveat is that where there is a creditor to the intestate who is not a Muslim, he may apply to
a court to take out letters of administration and if letters of administration had been earlier on
given to the intestacy such letters will be canceled (section 9 (2) Muslim Act).

The adoption Act no. 9 of 1989:

Section 13 states that where at any time after making an adoption order the adopter or adopted
person or any other person dies intestate, in respect of any property which might have been

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disposed by will, that property shall devolve in all respect as if he the adopted person were the
child of the adopter born in lawful marriage and were not the child of any other person.

Section 14, 15, and 16 are basically talking about inheritance under testacy

Section 16 (1) talks about customary law and how it applies to the adopted person including
intestacy. It states that an adoption order shall not have effect to make the adopted person a
member of any clan, lineage or other group recognized under customary law, but if the adopter is
a person subject to customary law and practice, then as from the date of the adoption order the
adopted person shall be a person subject to customary law and practice and all such rules of
customary law and practice including those relating to intestacy as applied in the case of the
adopter shall apply in the case of the adopted person.

In the case of joint adoption by the husband and wife it is stated in section 16 (3) the adopter
shall be taken as references to husband and wife.

EXECUTORS AND ADMINISTRATORS

In our jurisdiction as well as most common law jurisdictions the administration of an estate on
death arises if the deceased died intestate; meaning he did not leave a will or some assets are not
disposed of by the will or where a person dies leaving a will appointing an executor and that
executor predeceased the testator upon the testator‟s death.

An administrator sometimes known as administratix if female, act as personal representative of

the deceased in relation to land and other properties. Usually a creditor may claim and obtain a
grant of administration where a debt is claimed on the estate of the deceased. It is usually the
court that appoints an administrator or administratix to administer the estate of someone who
dies intestate or partial intestacy arises. An executor on the other hand is a person appointed by
the testator in his will to administer the property disposed in the will upon the testator‟s death.

A testator should find out whether his or her choice of executor is willing to serve in that role. A
person named as executor in the will is free to accept or reject the position within a reasonable
time following the death of the testator. If the executor rejects within a reasonable time, an
application is made to the court for the appointment of a new executor based on the
circumstances to be considered by the court. Many people choose their surviving spouses as

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executors since that person has the greatest knowledge of their financial affairs as well as family
situation. Other named several persons to serve as co-executors to ensure that their estate will be
handled fairly and honestly. Both executors and administrators are known as personal
representative of the deceased. They are also officials of the court because they derived their
authorities from court appointment. They are fiduciaries or trusted representatives of the
deceased; as such they have absolute duty to administer their estate solely for its beneficiaries.
Probate is a process by which the court establishes that a will is valid, it involves the process of
applying to the court for a grant of letters of administration. It is a general rule that executors and
administrators are required to take an oath as required by statute before beginning their duties.
The taking of an oath constitute an acceptance of their office. In our jurisdiction as well as other
Common Law jurisdictions the statute requires the executor or administrator to find a bond to
protect those interested in the estate. The amount prescribed in the bond will be forfeited if the
representative is found to have deliberately mismanaged the estate.

Also within the probation of statute; the Devolution of Estate Act 2007 provision is made against
protection for intermeddling with the estate of the deceased obtaining fraudulent letters of
administration and deprivation of beneficiaries. There is provision for liability for anyone found
committing these acts or offences. The authority of the administrator or executor terminates only
when the estate has need completely administered or the executor dies, or s suspended or
removed from office for grounds specified by law such as mismanagement, waste, abuse,
disloyalty, improper administration, negligence, or other misconducts in the administration of the
estate. An executor or administrator can also be removed for failure to file a proper inventory
amount or return of tax or failure to comply with court order or where the representatives
personal interest conflicts with his official duties or where there is such enmity between the
personal representatives and the beneficiaries that it might interfere with proper management of
the estate. The general and primary duties of administrator or executor are to administer the
estate in an orderly and proper manner to the best advantage of all concerned and to settle and
distribute the assets of an estate as quickly or reasonable as practicable.

Executors must submit the will to the probate division of the High Court of Sierra Leone and
then dispose of the estate according to the will where probate has been granted. Both executor
and administrator must make an inventory and appraisal of the estate and then file that

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information with the court. Executors and administrators are held liable for debt taxes of the
estate as well as loose resulting from unauthorized or improper investment of estate funds. As a
general rule both executors and administrators are allowed a reasonable compensation for the
services they perform to the administration of a deceased estate. Such a right is however
controlled by a statute unless the will specifically provide the amount of the executor‟s or
administrator‟s compensation commissions are most often the common forms of compensation
to executors and administrators.

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