LAW TIP
Beneficiaries of a will, without a vesting assent, have no authority to use the estate as collateral for a loan. CHARLOTTE ANUM & ANOR v THE HIGH COURT REGISTRAR, ACCRA & ORS (J4/10/2022) (2/3/2022)
QUOTE FROM JUDGEMENT
“The first issue in my view, which needs to be resolved in this appeal, is – in what capacity did the 6th, 7th, 8th & 9th defendants who are beneficiaries of the estate of Jonathan Odai-Quaye deal with the property in question when they entered the agreement leading to the auctioning of the property. The said defendants’ are beneficiaries just as the plaintiffs. By the provision of section 96 (2) of the Administration of Estates Act, they have no control or authority over the estate until a vesting assent is granted vesting the estate in them. The facts of this case as borne out by the record are that the 6 to 9 defendants took advantage of the inaction of the executors to enter agreement with the 4th defendant represented by the 5th defendant allowing the property, the subject matter of the suit to be used as Collateral for a loan. There was a default in the payment of the loan by the 4th defendant leading to the property being sold in satisfaction of a judgment debt. The 6th to 9th defendants obviously had no capacity to deal with the property the way they did. As a result of their action, the property has been lost to the estate of the deceased. Is it in the interest of justice for the court to bar other people who have interest in the property from taking steps to redeem the property? My answer is no. The acts of the 6th to 9th defendants were an illegality which the court ought not condone. CHARLOTTE ANUM & ANOR v THE HIGH COURT REGISTRAR, ACCRA & ORS (J4/10/2022) (2/3/2022) SUPREME COURT
LAW TIP
When executors neglect their duties, beneficiaries of a Will can protect the estate in court even without vesting assent. CHARLOTTE ANUM & ANOR v THE HIGH COURT REGISTRAR, ACCRA & ORS (J4/10/2022) (2/3/2022) SC
“We therefore hold that the plaintiffs who have interest in the property have the capacity to take steps to protect the property irrespective of them not having the property vested in them. The executors abandoned their duties over 30 years ago, justice demands that anyone who has interest in the property takes steps to protect and preserve properties belonging to the estate of the deceased. We would allow the appeal, the decision of the Court of Appeal affirming the decision of the High Court is hereby reversed. The case is restored to the cause list to be tried on its merit. We do order that the case be remitted back to the High Court, (differently constituted) to be tried.” CHARLOTTE ANUM & ANOR v THE HIGH COURT REGISTRAR, ACCRA & ORS (J4/10/2022) (2/3/2022) SUPREME COURT
LAW TIP
The Supreme Court has departed from its decision in the case of “In Re Okyere (deceased) (substituted by) Peprah Appenteng & Adomaa [2012] 1 SCGLR 5”regarding the title/ locus standi of beneficiaries without a vesting assent over an estate.
The Supreme Court now holds that beneficiaries of a Will can protect the estate in Court even without a vesting assent thus departing from its earlier decision in Re Okyere v Appenteng. CHARLOTTE ANUM & ANOR v THE HIGH COURT REGISTRAR, ACCRA & ORS (J4/10/2022) (2/3/2022)
QUOTE FROM JUDGEMENT
“The decision of this court In Re Okyere (deceased) (substituted by) Peprah v Appenteng & Adomaa [2012] 1 SCGLR 5 is a strict interpretation of Section 96 (2) of the Administration of Estates Act, 1961 Act 63 an interpretation which in the circumstances of this case works against the preservation of the estate of a deceased. … In the light of the peculiar circumstances that sometimes bedevil the administration of estates in this country, it is felt that some clarification is necessary on the interpretation of the law as given in this judgment so that we may not be taken as interpreting the law to result in absurdity. … In interpreting Section 96 (2) of the Administration of the Estates Act, we would take in to consideration the total intent behind the Act, which in my view includes preservation of the estate of a deceased against such acts as complained of in this suit. By Section 3 of the Courts Act, 1993 Act 459, this court can depart from its previous decisions where it finds it necessary to do so, Section 3 provides – (3) The Supreme Court may, while treating its own previous decisions as nominally binding, depart from previous decision when it appears to it right to do so; and all her courts shall be bound to follow the decisions of the Supreme Court on questions of law. … It is my view that the circumstances of this case demand that this court departs from its previous decision in the Okyere case to avoid a decision that will work against public policy. It is against public policy to allow the illegal acts of the 6th to 9th defendants to prevail. We therefore hold that the plaintiffs who have interest in the property have the capacity to take steps to protect the property irrespective of them not having the property vested in them. The executors abandoned their duties over 30 years ago, justice demands that anyone who has interest in the property takes steps to protect and preserve properties belonging to the estate of the deceased. (Emphasis mine) CHARLOTTE ANUM & ANOR v THE HIGH COURT REGISTRAR, ACCRA & ORS (J4/10/2022) (2/3/2022)