Vesting Assent: Supreme Court must review position (one)
My client asked me this question: “Ah, so, are you saying that if I don’t have vesting assent, that crook in Nsawam prisons had a right to sell my property to those who bought it, and that they too could keep the property, because you say what…. I don’t have capacity to defend my property? What sort of law is that?”
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Who can answer my client? The answer must be sensible and sound in equity.
In this essay, we shall look at what is called vesting assent, and ascertain whether the law applicable in Ghana, as interpreted and applied by Ghanaian Courts, serves the ends of justice.
The relevant law on vesting assent is the Administration of Estates Act, 1961 (Act 63), sections 1 (1), 2 (1) and 96 (1):
"1. (1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death ...
2. (1) The personal representatives shall be the representative of the deceased in regard to his movable and immovable property...
96. (1) A personal representative may assent to the vesting, in the form set out in the Third Schedule to this Act, in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto..."
What 1(1) and 2(1) are saying is that when a person dies, his property shall be looked after by those appointed as personal representatives (Executors in a Will, or Administrators in Letters of Administration), and they shall be responsible for managing the movable (e.g. car) and immovable (e.g. building/land) property of the deceased. The properties are not theirs; they are only interim caretakers. The operative verb in 1(1) and 2(1) is “shall”; it is imperative, mandatory, coercive.
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Section 96 (1) says that the personal representative has the discretion to vest the property in the name of the beneficiary. The verb changes from “shall” to “may”. Here lies the mischief. Have Ghanaian courts adverted their minds to the shift in meaning indicated by the verbs? Could it be that the vesting assent may not be necessary after all, but only desirable, and that a beneficiary of an estate could proceed to lay claim to a property without first obtaining vesting assent?
In Okyere (Decd) substituted by Peprah vs Appenteng & Adomaa (2011) SCGLR, 65, the Supreme Court, coram Brobbey JSC (Presiding), Dr Date-Bah,JSC, Adinyira JSC, Bonnie JSC, Aryeetey JSC, decided that vesting assent was necessary and a condition precedent before beneficiaries could exercise control over their property.
Madam Akua Attaa (deceased) by her last Will dated 11th August, 1983, bequeathed several properties to her daughter, the second defendant, Akua Adomaa. These bequeathals were challenged by the plaintiff on behalf of the Anima Korkor family of Seniagya, Asante, on the ground that the subject matter of the bequeathals were the property of that family and therefore the deceased testatrix (female of testator) lacked capacity to will those properties. In response, the second defendant counterclaimed that the properties bequeathed to her by the testatrix, her mother, were her self-acquired properties; they belonged to no one else.
The first defendant was the sole executor of the Will under which second defendant counterclaimed. The trial High Court and the Court of Appeal entered judgement for her on her counter-claim: that the properties were the self-acquired ones of the dead mother and that she could deal with the property.
The plaintiff, dissatisfied with these judgements, went further to the Supreme Court. The Supreme Court upheld the submission that the property of the testatrix were her own, not that of the family. As regards the vesting assent, the Court, per Dr Date-Bah, JSC said:
A devisee (one to whom property has been willed) cannot sue or be sued in relation to the devised property before a vesting assent has been executed in his or her favour. Accordingly, in the absence of a vesting assent executed in favour of the second defendant, she could neither sue or be sued on her devise. The appellant’s complaint on this score is justified and has to be upheld.
What Dr Date-Bah meant was that although Akua Adomaa’s mother owned her properties, and although she gave them to her daughter, the one (Executor) who was to put (vest) the properties in the hands of the daughter had not done so, so the properties were not Adomaa’s own; she had no right over them; she could neither fight for them nor defend them against a trespasser.
The Presiding Judge, Brobbey JSC, realising that the mechanical operation of the law on vesting assent had manifestly caused injustice in the suit before them, hedged his statement of agreement with the Court in these words:
‘’It is common knowledge that in this country some estates are dissipated by the inaction of the executors or personal representatives. Others go to waste or are lost as a result of the active misuse or abuse of the estate left by deceased persons when executors or personal representatives refuse or fail to attend to duties entrusted to them under estates or selfishly make use of the estate to their benefit or benefit of undeserving others’’.
If the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate, or to save it from being dissipated or wasted. The plaintiff in such an action will be acting on the basis of his expectant interest in the estate, not in his capacity as a title holder under a Will or grant at customary or statutory law.
The import of Justice Brobbey’s observation is that a vesting assent need not be prior to an action by a beneficiary of a Will or Letters of Administration, in defence of a property. The beneficiary, realising the property is in danger, could initiate a suit to defend it, in anticipation of future benefits from it.
Writer’s E-mail: akwesihu@yahoo.com