Mirror Lawyer: Can family members take-over deceased’s property?
Dear Mirror Lawyer, In many communities in Ghana, members of a deceased extended family seize assets of a deceased person including locking the bedroom of a person immediately on his demise. Is this permitted by law? Are family members permitted to act this way?
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Cynthia Sottie, Adenta, Accra
Dear Sottie, The Administration of Estates Act says that on the death of a person, his personal properties shall devolve on to his personal representatives who are supposed to manage them according to law.
Personal representatives is defined as either executors (those responsible where the deceased left a Will) or Administrators ( those in charge where the deceased died without making a Will and the court will have to appoint people to manage the estate).
Until these people are appointed by the court, the estate shall for the time being devolve on the heirs and assigns or on the successor if the whole estate devolves under customary law.
Though the law provides that the estate shall devolve on the personal representatives until the court formally appoints executors or administrators, the properties of a deceased person are not to be dealt with in any manner such as to suggest that they are being distributed, wasted or disposed of before such a grant is made.
Order 66 Rule three of the High Court Rules provides as follows:
"Where any person, other than the person named as executor in a will or appointed by court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding two years or to both"
To intermeddle with an estate means to deal with the property in a manner inconsistent with the interest of the rightful owners.
In effect, selling any of the properties which is the subject matter of the estate when you do not have the authority to do so as an executor or administrator constitute intermeddling.
In the Court of Appeal case of IN RE APPAU (DECD); APPAU v. OCANSEY
[1993-94] 1 GLR 146 One A died intestate survived by his widow, the appellant, and four minor children. Soon thereafter, the respondent, a brother of A, took possession of two cars belonging to A and sold them.
The wife appellant then applied to the High Court for letters of administration in respect of A's estate and also brought an application under Order 60, Rule three of the High Court (Civil Procedure) Rules, 1954 (LN 140A) for the brother of the deceased to be punished for intermeddling with A's property.
The Court of Appeal held that the general rule was that since an administrator derived his authority entirely from the appointment of the court, a party who was entitled to administration could not do anything as an administrator before letters of administration were granted.
The court further went on to say that Order 60, Rule three of the High Court (Civil Procedure) Rules, 1954 (LN 140A) was explicit that a person who merely took possession of or administered the estate or asset of a deceased person was liable of intermeddling so long as that person was not an administrator.
Accordingly, since it was clear that at the time the respondent took the vehicles and entirely disposed of them he was neither an administrator appointed by the court nor even a successor appointed by the family of the deceased, he was a fortiori liable for intermeddling in the estate within the terms of Order 60, Rule three of LN 140A.