THE PLACE OF THE MINOR IN THE ADMINISTRATION OF ESTATES

THE PLACE OF THE MINOR IN THE ADMINISTRATION OF ESTATES* Abstract The Administration of Estates involves a number of principles which define the responsibilities that attend the office of the personal representatives of the estate of the deceased. The usual assumption is that the minor has no stake in the administration of estates as he can neither be appointed an administrator nor take the mantle of executorship until he attains majority in either case. It is contended that this assumption is not entirely correct as the minor plays some critical part in the said exercise through the mechanisms of guardianship and trusteeship. Personal representatives are equally not immune to liability where minority interests in the estate of the deceased are compromised. This paper discusses the place of the minor in the administration of estates as a subject of limitations and an object of liabilities. _____________________________________________________ Introduction …as long as the heir is a child he is no different from a slave, although he owns the whole estate. He is subject to guardians and trustees until the time set by his father. – Galatians 4: 1-2. The minor is a special breed in law. Whether in civil or criminal law and procedure, the minor has always been treated with a touch of exception. The same applies to the infant, the juvenile and the child.1 In criminal law, an infant is presumed to be incapable of committing a crime. As Andrew Ashworth put it: “The principle of individual autonomy presumes that, where an individual who is neither mentally disordered nor an infant has made a sufficient causal contribution to an occurrence, it is inappropriate to trace the causation any further.”2 Thus, the principle of causality in criminal law does not affect the “incapacity” presumption in law in favour of the infant and the mentally disordered. According to Christopher Ryan & Gary Scanlan, Aloysius Obumneme Ezeonu is an Onitsha based Legal Practitioner, a Notary Public and author of the Book: Probate Practice in Nigeria: A Practical Approach (2012) Enugu, Snaap Press Limited. 1 Application in England: “Persons who have not attained full age may be, and in probate practice are, referred to as minors instead of infants (s.12).” Yeldham, R.F., et al, Tristram and Coote’s Probate Practice (1995), London, Dublin and Edinburgh, Butterworths [Twenty-eighth edition], para 11.115, p. 373. They placed reliance on section 12 of the Family Law Reform Act 1969. 2 Principles of Criminal Law, 1991, Oxford, Oxford University Press, p. 100. * 1 A child below the age of 10 is incapable of committing a criminal offence. This is achieved through the medium of an irrebuttable presumption of law to this effect (see Children and Young Persons Act 1933, s. 50 as amended, and Murphy, A Practical Approach to Evidence). In addition there is a rebuttable presumption of law that a child between the ages of 10 and 14 is also incapable of committing a criminal offence. This presumption may be rebutted, however, if the prosecution can establish the commission by such a minor of an actus reus with full mens rea and knowledge that the act was wrong. This means either morally or legally wrong (see R v Corrie (1918) 83 JP 136 and McC v Runeckles [1984] Crim LR 499).3 This is the English position and is demonstrated in the following case: “In Walters v. Lunt (1951)4 a seven-year-old boy passed onto his parents a tricycle which he had ‘stolen’. They were aware of this fact. They were found not guilty of handling stolen goods as the goods could not in law be regarded as being stolen.”5 A similar principle applies in Nigeria, albeit with a different age classification.6 Thus, an infant is regarded as a doli incapax7 in criminal law. He is presumed incapable of committing an offence. Apart from the minor and some other persons exempt from criminal responsibility, every other person is regarded as criminally liable for his actions, including a blind man.8 The exceptional treatment given to minors also affects issues of bail and recognizances. Section 74 of Administration of Criminal Justice Law of Anambra State 2010 provides for bail in respect of matters other than offences. It states thus: “Where any person is brought before a court on any process in respect of any matter not included within section 73, such person Criminal Law (Second Edition) 1989, London, Blackstone Press Limited, p. 150. In other words, “A child under the age of 10 is irrebuttably presumed incapable of criminal fault, irrespective of whether or not he actually committed an actus reus with the relevant mens rea.” See Professor Duncan Bloy, CRIMINAL LAW (Second Edition) 1996, Great Britain, Cavendish Publishing Limited, p. 189, para. 7.2.1. See also F.T. Giles who discussed the age of criminal responsibility in The Criminal Law (1963) Middlesex, Pengiun Books Ltd., p.172. 4 (1951) 2 All ER 645. 5 Professor Duncan Bloy, Op. Cit., p. 189, para 7.2.1. 6 According to Okonkwo and Naish, “If a child of seven or over and under 12 is charged with an offence there is a legal presumption that he is incapable of committing it which is rebuttable on proof that he had capacity to know that he ought to do what he did. The only exception is that there is an irrebuttable presumption that a boy under 12 is incapable of having carnal knowledge.” Criminal Law in Nigeria (1980) New Zealand, Sweet & Maxwell (N.Z.) Ltd., p. 120. 7 The term is a Latin phrase meaning “incapable of wrong’. It is means “incapable of committing a crime or tort”. See Black’s Law Dictionary (Eighth Edition) 2004, West Publishing Co., p. 521. 8 See Edamine v. The State (1996) 3 NWLR (Pt.438). 3 2 may in the discretion of the court be released upon his entering into a recognizance stipulating the condition for his appearance before such court.” Section 76 of the said law, however, provides for recognizance in respect of minors. It states thus: 76. Where in any case the person in respect of whom the court makes an order requiring that a recognizance be entered into is a minor, the minor shall not execute the recognizance but the court shall require a parent, legal guardian or other fit person, with or without sureties, to enter into a recognizance that the minor shall do what is required under the court’s order. On the flip side of the assumption that an infant is incapable of criminal liability, an infant is equally assumed to be incapable of asserting certain civil rights. In contract, for example, an infant can only contract for necessaries. He cannot enter into a contract for sale of land. In the case of Omidiji v. F.M.B.,9 an infant was issued with a certificate of purchase pursuant to a sale of real property by public auction. Setting aside this transaction, Akintan, J.C.A. stated thus: The law is settled that at common law infants or minors are barred from entering into contracts. The only exceptions are in respect of contracts which are for the infant’s necessaries: See Chitty on Contracts 24th ed., Vol. 1, paras 472-473, page 220. Thus, as it has not been shown or established that the contract in question in this case is one for infant’s necessaries, the buyer of the house being an infant, was therefore incapable of entering into the contract. The purported sale of the house to the said infant purchaser is therefore null and void. (p. 672, A-C). A fortiori, section 7(a) of the Land Use Act prohibits an infant from being a grantee of a Statutory Right of Occupancy, but such a grant may be made to a guardian or trustee of an infant who will hold such grant on trust for the benefit of the infant. Also as provided by section 675 of the Companies and Allied Matters Act, an infant is not qualified to be appointed a trustee under Part C of the legislation. In other words, an infant cannot be appointed a trustee of a body registering as Incorporated Trustees. An intending trustee is 9 (2001) 13 NWLR (Pt.731). 3 required to make declarations in respect of certain matters at the point of application. According to Inyang E Ekwo, The current practice by the Commission is that a trustee is required to attach a current passport photograph to the declaration form. The trustee is additionally required to declare that he is not an infant; not a person of unsound mind; has not been convicted of any offence involving fraud or dishonesty within five years of appointment as a trustee; and that he is not an undischarged bankrupt.10 (Emphasis supplied). This exceptional treatment also affects issues of procedure. The Evidence Act makes provision as to how the evidence of a child should be treated. The unsworn evidence of a child should be corroborated by a credible evidence for such evidence to be validly qualified for judicial evaluation. It cannot be corroborated by the unsworn evidence of another child.11 In respect of the sworn evidence of a child, Ogwuegbu, J.S.C. in the case of Onyegbu v. State,12 restated the position of the law thus: The sworn evidence of a child need not as a matter of law, be corroborated, but it is desirable that the Judge should warn himself of the risk of acting on the uncorroborated evidence of young boy or girl though he may do so if convinced that the witness is telling the truth. See R v. Dossi (1918) Cr. App. R. 158 at 160 and R. v. Campbell (1956) 40 Cr. App. R. 95 at 102. There is no complaint that he did not warn himself.13 The law equally makes special provision as to how a minor should be served with court processes. This is contained in the various High Court Rules of the States of the Federation of Nigeria. For example, Order 7 rule 6(1) of the High Court of Anambra State (Civil Procedure) Rules 2006 provides thus: Inyang E Ekwo, Incorporated Trustees, Law and Practice in Nigeria (2007) Durban, LexisNexis, p.80, para. 5.7 11 It was held in the case of Jos Native Authority Police v. Allah NA GANI (1968) NMLR 8, that the unsworn evidence of a child cannot amount to corroboration of the unsworn testimony of another child. 12 (1995) 4 NWLR (Pt.391). 13 Onyegbu v. State (supra), p. 530. 10 4 6.(1) Where a person under legal disability14 is a defendant, service of his guardian shall be deemed good and sufficient personal service, unless a Judge otherwise orders. Provided that personal service on a minor15 who is over 16 years of age living independently or doing business is good and sufficient.16 In the matter of the law and practice guiding the administration of estates, the minor is also subject to a number of statutory exceptions. In England, for example, a minor is exempt from some consequences of intermeddling with the estate of the deceased. In the case of Stott v. Meanock17, it was held that a minor who intermeddles with an estate cannot be made to account as an executor de son tort.18 We intend in this paper, therefore, to discuss the exceptions accorded a minor in the administration of estates in both testate and intestate situations. We shall equally evaluate the impact of such exceptions on the administration of estates. But we shall first discuss the relevant concepts to our discourse, namely, the meanings of “minor”, “testacy”, “intestacy”, “estate” and “administration of estates”. Who is a Minor? It does appear that the terms child, infant, juvenile and minor refer to different age classifications and in respect of different statutory requirements. For example, Section 2 of the Administration of Criminal Justice Law of Anambra State 2010 defines an “infant” as “a person who has not attained the age of seven years”. It defines a “minor” as “the same thing as a child or young person”. It defines a “juvenile offender” as “an offender who has not attained the age of eighteen years”. According to the Children and Young Persons Law, “Persons Under Legal Disability” means persons who lack capacity to institute or defend any proceedings by reason of age, insanity, unsoundness of mind or otherwise. See Order 1 of the High Court of Anambra State (Civil Procedure) Rules 2006. 15 By Order 1 of the High Court of Anambra State (Civil Procedure) Rules 2006, “minor” means a person who has not attained the age of 18 years. 16 A minor falls under the definition of persons under legal disability. Thus, he can only be served through his guardian. He can only be served personally, where he is over 16 years of age and is living independently or doing business. 17 (1862) 31 LJ Ch 746. 18 See Halsbury’s Laws of England, Fourth Edition, Volume 7, Great Britain, 1976, Butterworth & Co (Publishers) Ltd., para. 759. 14 5 Cap. 22, The Revised Laws of Anambra State 1991, “child” means any person who has not yet attained the age of fourteen years. For the purposes of this paper, the relevant definition of minor is as contained in the various laws and rules providing for probate and administration of estates. For example, Order 1 rule 2 of the Anambra State High Court (Civil Procedure) Rules 2006 defines a minor as “a person who has not attained the age of 18 years”. The same definition is contained in Order 1 rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2012. In the same vein, the American Scholar Dennis W. Hower defined a minor as follows: A person who is under the legal age of majority, usually eighteen.19 Thus, a person is defined as a minor according to the statutory provisions of the law in question. In which ever year of classification employed, a minor is a person under the legal age of majority. What is an estate? By section 68(1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State, an “estate” means property to which a person is entitled at the time of his death, but does not include interest in property which ceases at death. The said section also defines “net estate” to mean all the property of which a testator had power to dispose of by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and estate duty payable out of his estate on his death. This is in contrast to “gross estate”.20 According to Dennis R. Hower, an estate is: “The whole of the property, real and personal, owned by any person.”21 According to C.S. Ola, Wills, Trusts and Estate Administration for the Paralegal, Fourth Ed., (1996) USA, West Publishing Company, p. G-13. 20 “All of a person’s property before deductions (debts, taxes, and other expenses or liabilities) that is subject to the federal estate tax.” See Dennis R. Hower, Op. cit., p. G-9. 21 Ibid., p. G-8. See also the Supreme Court case of Carew v. Oguntokun (2011) 5 NWLR (Pt. 1240). 19 6 An ‘estate’ is the aggregate of the things possessed by a person, including his goods, money and property of every kind. When a person dies, his estate passes into the possession of his personal representatives, ‘executors’ or ‘administrators’, whose duties, briefly, are to meet the necessary funeral expenses and then, after having any will legally proved, to realize the estate and pay debts and legacies.22 (Emphasis supplied). Osborne’s Concise Law Dictionary distinguishes different types of estate, namely, an absolute estate; a conditional estate; a contingent estate, a determinable estate; an estate on expectancy; an estate in possession; a vested estate; an estate in severalty; an estate in common; a customary estate; an estate in fee simple absolute; an estate in freehold and an estate in inheritance.23 What constitutes the estate of a deceased person? By the tenor of the above definition, a deceased person’s estate refers to all his property but does not include interest in property which ceases at death. This comprises both his personal and real real property. By implication, therefore, a person cannot by a Will dispose of a property not belonging to him. In the case of Davies v. Sogunro & Ors,24 it was held that a member of a land-owning family cannot devise his unpartitioned portion of family land. Minority and Testacy One is said to die testate when one has made a will. A will becomes valid if the deceased complied with the conditions stipulated in the Wills Law relevant and applicable to the deceased. Subject to certain exceptions in law, any person can make a will; any person could be made a beneficiary of the will; any person can attest to a will; any person can be appointed an executor in a will. In other words, a person could be related to a will in four possible characters, namely, (a) as a Testator or Testatrix, (b) as a Witness, (c) as a C.S.Ola, Income Tax Law for Corporate and Unincorporated Bodies in Nigeria, Ibadan, Heinemann Educational Books (Nig.) Ltd., p. 455. 23 (Twelveth Edition) Scotland, Sweet & Maxwell, p. 170 24 (1937) 13 N.L.R. 1. And also Oke v. Oke (1974) NMLR 351, all cited F.J. Oniekoro, Wills, Probate Practice and Administration of Estates in Nigeria (2007) Enugu, Chenglo Limited, p. 40. 22 7 Beneficiary, and (d) as an Executor, Executrix or Trustee. Whilst some of these characters are repellent, some others are compatible. For example, a person cannot be a Testator and a Witness or a Beneficiary or an Executor at the same time. The character of Testator and the rest are mutually exclusive. Barring some exceptions,25 a person cannot be a Witness and a Beneficiary at the same time. The consequence of such a scenario is that the gift to the Beneficiary-Witness becomes void.26 But a person could be a Beneficiary and an Executor or Executrix at the same time. What is the position of the minor in respect of these requirements of the law? Can a minor make a will? One of the elements of the validity of a will is the capacity of the testator to make a will. For example, a will made by an insane person is void.27 In the same vein, an infant cannot make a will. Section 139(1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State,28 provides thus: 139(1) No will made by any person under the age of eighteen years, and no gift made in contemplation of death by any person under the age of eighteen years, shall be valid: Provided that a person shall attain the age of eighteen years for the purposes of this Part on the day preceding the eighteenth anniversary of his birthday.29 25 For a detailed treatment of the said exceptions, see Andrew Iwobi, Succession, (1996) London, Cavendish Publishing Limited, pp. 105-106 26 “Under s 15 WA a beneficiary loses his beneficial entitlement where the will has been witnessed by him or his spouse. According to Russell LJ in Re Bravda (1968), ‘this is considered necessary to ensure reliable, unbiased witness of due execution’. Here, T executed a home-made will leaving his estate to his two daughters in the presence of the daughters and two other persons W1 and W2. W1 and W2 signed as witnesses and as an afterthought T asked the daughters to sign the will. The Court of Appeal held with great reluctance that the daughters had witnessed the will and were therefore caught by the provision of s 15.” See Andrew Iwobi, op. cit., p. 104. 27 Section 139(2) ASEDPLAS provides thus: “No will made by any person who is insane shall be valid;” 28 Cap. 4, The Revised Laws of Anambra State of Nigeria, 1991. 29 “The rule at common law was that a person attained a particular age on the eve of his birthday. Hence a will made by a testator at any time on the day before his twenty-first birthday was valid. In the case of anniversaries occurring after January 1, 1970, a person attains an age on his birthday. Thus a will made on the day before the testator’s eighteenth birthday is void, unless he is entitled to make a privileged will.” THEOBALD on Wills, Thirteenth Edition, (1971) London, Stevens & Sons, para. 102 8 This provision is equally contained in the various Wills Acts of the different States of the Federation. This provision, however, does not apply to privilege wills. By section 143(1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State, the requirement for writing, execution, attestation, attainment of the age of eighteen years or number of witnesses shall not apply to a will made by any members of the armed forces or any seaman or mariner at sea. In England, A person who is under the age of 18, being in actual military service or at sea may make a privileged will and is equally capable of revoking such a will while he remains privileged. There was however a difficulty regarding revocation where such a person ceased to be privileged during infancy, in view of the general rule disqualifying infants from making or revoking wills. In response to this difficulty, it has now expressly been provided in s 3(3) Family Law Reform Act 1969 that an infant is capable of revoking a privileged will even if at the time of revocation he could not make a new privileged will.30 Can a minor witness a will? With certain exceptions, any person can attest to a will. A blind man, for example, cannot attest to a will. This could be demonstrated with an English case. In the Estate of Gibson,31 a second codicil was signed in 1943 by the deceased in the presence of Fred James, then Managing Clerk of a firm of Solicitors, and his wife. Mr. James was totally blind but had known the deceased personally since 1932 and he knew him quite well by voice. The question was raised whether the second Codicil had been duly executed in view of the total blindness of one of the witnesses. Pearce J. posed the following questions: Is mere presence without the faculty of sight enough to constitute a witness for the purpose of S.9 of the 1837 Act? Is an act which the witness cannot see done in his presence?32 A. Iwobi, Essential Succession (1996) Great Britain, Cavendish Publishing Limited, pp. 66-67 (1949) 2 All E.R. 32 Kola Abayomi, “A Critical Appraisal of the Requirements of Due Execution of a Will” in Nigerian Law and Practice Journal, N.L.P.J. Volume 3, No. 2, October, 1999, pp. 81-82. 30 31 9 After examining the meaning of “attesting to a fact”,33 the court held that a blind man cannot attest to a will. Otherwise, there is no statutory restriction as to who can be a witness to a will. Thus, a minor can attest to a will even if he cannot make a will. In the case of Mathias Ikenwello Egenti v. Fidelis Udemuezue Egenti,34 it was held that although an infant cannot make a Will under the Wills Act, there is nothing in law that precludes him from attesting a Will. As George, J., put it: At the close of the case for the defendant, counsel for the defendant submitted that since an infant could not make a will under S.7 of the Wills Act, he could not attest a Will. I am unable to agree with the learned counsel for the defendant, if it was the intention of the legislature that an infant should be incapable of attesting a will, it would have specially so enacted….35 (Emphasis supplied). This is very much the English position. According to Andrew Iwobi, It has been accepted in cases such as Smith v. Thompson (1931) that an infant may witness a will (even though any will made by him will be void under s 7 WA). It would however be imprudent for a testator to permit his will to be witnessed by an infant who by reason of his tender years is unable to appreciate the nature and importance of what he is doing.36 Can a minor be a beneficiary of a will? The law does not prohibit the minor from being a beneficiary of a will. As the learned author, Theobald on Wills put it: “There is no restriction on gifts to minors by will. However, a minor cannot give a valid receipt for a legacy.”37 33 “To attest is to bear witness to a fact” Sir H. Henner Fust in Hudson v. Parker (1844) 1 Rob Eccl. 14; Vol. 164 E.R. 948. An attesting witness is one who vouches for the authenticity of another’s signature by signing an instrument that other has signed. See Ode v. Folarori (2001) 9 NWLR (Pt.718). 34 (1973) 3 U.I.L.R. (Pt.III) 282. 35 Ibid., p. 284. See also F.J. Oniekoro, op. cit,, pp. 135-137 36 Succession (1996) England, Cavendish Publishing Limited, p. 26 37 See Theobald on Wills, para. 410. “Personal representatives should obtain receipts from beneficiaries for all money payments and transfers of assets. Benefits given to infants will normally have to be kept until they are 18; until that age is reached, a valid receipt cannot be obtained. (If the interest given is 10 Even a child en ventre sa mere38 can be a beneficiary of a will. However, it appears that in making a minor a beneficiary in a will, certain statutory restrictions must be observed. For example, where a minor is absolutely entitled under the will or intestacy to a devise or legacy, or residue of a deceased’s estate or share therein, trusteeship would be involved. This inference is derived from the ipsissima verba of section 45(1) of the Administration of Estates Law of Lagos State which provides for power of personal representatives to appoint trustees of infants’ property. The said section provides thus: 45(1) Where an infant is absolutely entitled39 under the will or on the intestacy40 of a person dying before or after the commencement of this Law (in this subsection called “the deceased”) to a devise or legacy, or to the residue of the estate of the deceased, or any share therein, and such devise, legacy, residue or share is not under the will, if any, of the deceased, devised or bequeathed to trustees for the infant, the personal representatives of the deceased may appoint a trust corporation or two or more individuals not exceeding four (whether or not including the personal representatives or one or more of the personal representatives), to be the trustee or trustees of such devise or trustee or trustees of such legacy, residue or share for the infant, and may execute or do any assurance contingent then, of course, it will necessarily be retained pending satisfaction of the conditions attached to it.) Testators do sometimes authorize their executors to accept as valid a receipt from either a minor legatee or his parents. Where this is the case, the executors have a discretion; they may choose whether or not to accept such a receipt – see Re Somech [1957] Ch 165. If the legacy to the infant is vested, it can be transferred to trustees for the infant: the 1925 Act, 1925…” Sherring & Sladen, Ranking, Spicer and Pegler’s Executorship Law, Trusts and Accounts (Twenty-fourth edition) 1996, London, Reed Elsevier (UK) Ltd., p. 105, para. 5.49. 38 The term “en ventre sa mere” means any issue who had been conceived in Testator’s lifetime but born after his death. See Andrew Iwobi, Op.Cit., p. 99. “If the gift is to the children of a woman, and upon the construction of the will the word ‘children’ includes illegitimate children, an illegitimate child en ventre at the date of the will will take.” See Theobald on Wills, para 867. 39 “An absolute interest is one which confers on the legatee an interest extending to the whole subject matter of the gift; the legatee is entitled to an interest in both capital and income without restriction. A limited interest is one which extends to a part only of the subject matter, eg a life interest, which confers a right to the income and not to the capital.” See Sherring & Sladen, op.cit., para. 5.10, p. 91 40 This is in pari materia with the English position. As Halsbury’s Laws of England remarked: “The provision set out in the text does not apply on an intestacy unless the minor is entitled to an absolute vested interest (Re Yerburgh, Yerburgh v Yerburgh [1928] WN 208), and under an intestacy where the devolution of the intestate’s estate is governed by English law it is no longer possible for a minor to become entitled to such an interest except of marriage (Re Wilks, Keefer v Wilks [1935] Ch 645 at 650; and see paras. 1389, 1397, post). The provisions applies, however, not only to estates regulated as regards devolution by English law but to estates regulated by foreign law and therefore applies if under foreign law a minor takes such an interest: Re Kehr, Martin v Foges [1952] Ch 26, [1951] 2 All ER 812.” Fourth Edition, Volume 17, p.640 11 or thing requisite for vesting such devise, legacy, residue or share in the trustee or trustees so appointed. On such appointment the personal representatives, as such, shall be discharged from further liability in respect of such devise, legacy, residue, or share, and the same may be retained in its existing condition or state of investment, or may be converted into money may be invested in any authorized investment.41 (Emphasis supplied). I guess it is for this reason that the learned author, J E Penner stated in respect of gift of land to a minor as follows: “One cannot give minors land, so if one wants a minor to have Blackacre…., it must be held on trust for him by someone else.”42 It is the law that an executor is entitled to a receipt on payment of a legacy, and this is sufficient discharge, so that he is only in exceptional circumstances entitled to a formal deed of release.43 In respect of legacies to minors, Halsbury’s Laws of England provides thus: In the absence of an express direction in the will an executor cannot safely pay a legacy to a minor until the minor attains his majority, and he may not make the payment to a minor’s father. If, however, the minor, after attaining his majority, ratifies a payment made to his father, he cannot afterwards sue the executor. A married minor may give a valid receipt for income and accumulations of income, but trustees still have a discretion to withhold payment until a married minor attains his majority if withholding is for the minor’s benefit.44 (Emphasis supplied) The learned author, Sir David Hughes Parry, expatiating on the implications of distributing the legacies of a minor in a manner not envisaged or prescribed by the law stated thus: A personal representative should take case not to distribute property vested in him among persons who are not entitled to it or who have no authority to receive it. Thus, where the legatee is a minor (that is under eighteen), the personal representative is not discharged by paying it to him, unless the will provides that See also section 116 of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State. 42 J.E.Penner, The Law of Trusts (2002) Great Britain, Butterworths LexisNexis, (third edition) p.14. 43 See Halsbury’s Laws of England, Fourth Edition, Volume 17, para. 1235. 44 See Halsbury’s Laws of England, Fourth Edition, Volume 17, para. 1249, p. 639. 41 12 the minor’s receipt shall be a good discharge, or directs payment at an earlier age than eighteen; for a minor cannot give a valid receipt, though married minors (after 1969) can give valid receipts for income. Nor is the executor discharged if he pays the legacy to the minor’s parents, unless he acts under an order of the court. Before 1926 the only courses open to the executor were to pay the legacy into court or to retain the legacy until the person under full age (then twenty-one) attained majority. After 1969, personal representatives may, as we have seen, appropriate any part of a deceased persons’ property towards a minor’s interest under a will or an intestacy, but the consent of the minor’s parent or guardian or the court is necessary; and if the minor is absolutely entitled to an interest under a will or under an intestacy, the personal representatives may appoint trustees from him and vest his interest in them and thereby secure their own discharge. Until a personal representative having in his hands assets to which a minor is absolutely entitled avails himself of the prescribed method of obtaining his discharge from further liability in respect of those assets, or accounts for them, or pays them over to the minor on attaining the age of eighteen, he remains liable for them in his capacity as a personal representative.45 (Emphasis supplied) The import of these principles of law is that legacies to minors are subject to some exceptions. In England, this exception also relates to matters of maintenance of a minor. According to Sherring & Sladen: Where the legatee is a minor child of the testator, or a minor to whom the testator stood in loco parentis, and there is no provisions for the maintenance of such minor in the will, interest on a legacy to the minor carries interest at 5% from the date of death: Trust Act 1925, s 31(3), and Re Bowlby [1904] 2 Ch 685. This rule – a very old one – applies only if the legacy is given direct to he minor and, if the legacy is contingent, only if the contingency refers to the child’s minority – Re Abrahams [1911] 1 Ch 108. There is a further, somewhat similar, exception where a legacy is given to a minor (not necessarily a child of the testator) and the will contains or implies some indication that the gift is intended to provide for the minor’s maintenance; this exception does not apply where there is some other provision for maintenance in the will.46 Can a minor be appointed an executor of a will? 45 46 The Law of Succession, (Sixth Edition) 1972, London, Sweet & Maxwell, pp. 315-316 Sherring & Sladen, Op. Cit., para. 5.21, p. 95. 13 A person can appoint an executor or executors in his will. The nonappointment of an executor does not invalidate a will. A minor could be appointed as an executor alone or with other persons. In other words, a minor could be appointed as a sole executor or as an executor along other minors, or as an executor amongst persons who have attained majority. These scenarios spell different implications with respect to administration of estates. We shall treat these implications anon. Grants in respect of Administration of Estates A person may die testate, intestate or partially intestate. In whichever case, his estate is subject to administration. This is because the assets left by the deceased are primarily meant for clearing his debts. The task of clearing a deceased’s debt and distributing the residuary estate accruing under testacy or intestacy to the beneficiaries is left to the living. This assignment is carried out by a class of persons known as personal representatives. The term “personal representatives” refers to the Executors and Administrators of an estate of a deceased person.47 What are the principles guiding the grants of probate and letters of administration in respect of the minor? It must be noted straightaway that probate cannot be granted to a minor. See the case of Agidigbi v. Agidigbi.48 In respect of letters of administration, Andrew Iwobi stated thus: A grant cannot be made to a minor or a person who is mentally or physically incapable of managing his own affairs. But a grant may be made for the use and benefit of the minor or incapable person to the parent or guardian of the minor or to a person authorised by the Court of Protection in the case of an incapable person.49 By section 68(1) of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State, “personal representative” means the executor, original or by representation, or administrator, of a deceased person. (PART 3. - SUCCESSION AND ADMINISTRATION). By section 136 of the same law, however, “personal representative” includes an heir, executor and administrator. (PART 4. – WILLS). 48 (1992) 2 NWLR (Pt.221). 49 A. Iwobi, Op. cit., p. 179 47 14 What then happens when a minor is appointed an executor in a will or how does a minor participate in the administration of an estate in a case of intestacy? Minority and Executorship In cases of testacy, if the deceased appointed executors, they have the duty to apply for the probate of the will to enable them accomplish the task of administration of estates. Where a number of persons have been appointed executors of a will, those who are ready could apply for probate of the will. The other persons have reserved power to apply at a later date. As I observed in an earlier work: The term ‘reserved power’ refers to the power of an executor to make a later application after an original probate has been granted to other executors pursuant to an earlier application for probate. On the exercise of a reserved power, an executor is granted double probate.50 In the case of substitutional executorship,51 there is no reserved power. Thus, if A and B are appointed executors of a will but B’s appointment is predicated on the refusal of A to act as executor, B has no power to apply with A for probate. B can only apply for probate where A has declined to do so. Unless the foregoing happens, B has no reserved power to apply for probate. Power is reserved only when both executors have equal right to apply at the same time but the other executor chooses to exercise that right later in time than the other. Explaining this second type of grant more lucidly, Halsbury’s Laws of England states thus: Where a testator has directed that in a certain event some other person is to be substituted for his original executor, that other Obumneme Ezeonu, Probate Practice in Nigeria: A Practical Approach (2012) Enugu, Snaap Press Ltd., para. 7.01, p. 63. 51 In respect of conditional and substituted appointments, Halsbury’s Laws of England remarked thus: “A testator may appoint his widow to be his executrix during her widowhood, or his son to be his executor upon attaining his majority. He may make the appointment conditional upon the happening of a certain event, and he may provide for the determination of the appointment or the substitution of one executor for another upon the happening of a given event.” Fourth Edition, Vol. 17, para. 714, p. 378. 50 15 person becomes entitled upon the happening of the event to a grant in his own favour. Such a grant is known as a cessate52 or second grant, and differs from a grant de bonis non administratis by being a re-grant of all the estate remaining, and by being a grant of probate and not of administration with the will annexed. The substituted executor takes the executor’s oath, but swears the estate at the value only of what remains undistributed.53 The Minor as a Co-Executor By Order 5554 rule 65(1) of the High Court of Anambra State (Civil Procedure) Rules 2006, where one of several executors is a minor, probate may be granted to the adult executors, with power reserved for making the like grant to the minor on his attaining the age of 18 years and administration for the use and benefit of the minor until he attains the age of 18 years may be granted only if the adult executors renounce or, on being cited to accept or refuse a grant, fail to make an effective application.55 However, A minor executor to whom power is reserved will not be liable for acts of his co-executors until he takes out probate.56 The Minor as a Sole Executor By Order 55 rule 64(5) of the High Court of Anambra State (Civil Procedure) Rules 2006, where a minor who is sole executor has no interest in the residuary estate of the deceased, administration with the Will attached for the use and benefit of the minor until he attains the age of 18 years shall, unless “A cessate grant may be a grant of probate, administration with the will annexed, or simple administration, depending upon the circumstances of the application.” See C. Rendell, Wills, Probate and Administration (1994) Great Britain, Cavendish Publishing Limited, , para 8.11.2, p. 163. 53 Halsbury’s Laws of England, Fourth Edition, Volume 17, Great Britain, 1976, Butterworth & Co (Publishers) Ltd., para. 863, p. 455. 54 Order 55 of the said rules deals with Probate and Administration. It contains 105 rules. In contrast the High Court of Lagos State (Civil Procedure) Rules 2012 contains four orders dealing with issues of probate and administration. Order 57 deals with Grant of Probate or Administration in General; Order 58 deals with Grant of Probate or Letters of Administration With Will; Order 59 deals with Granting Letters of Administration Without Will; Order 60 deals with Proceedings in Probate and Administration Actions. In the High Court of the Federal Capital Territory Civil Procedure Rules 2004 it is treated under two orders. Order 48 provides for Probate and Administration, whilst Order 49 deals with Probate (Non-Contentious) Procedure. 55 See Order 57 rule 13(1) of the High Court of Lagos State (Civil Procedure) Rules 2012. 56 See Russel’s Case (1584) 5 Co Rep 27a; Whitmore v. Weld (1685) 1 Vern 326 at 328; Cummins v. Cummins (1845) 3 Jo & Lat 64. See Halsbury’s Laws of England, Fourth Edition, Volume 7, Great Britain, 1976, Butterworth & Co (Publishers) Ltd., para. 990, p. 517 52 16 the Judge otherwise directs, be granted to the person entitled to the residuary estate. Renunciation by a Minor The rules of court provide for renunciation of probate or letters of administration. There are special provisions in respect of renunciation of probate or letters of administration by a minor. By Order 55 rule 65(2) of the said rules, a minor executor’s right to probate on attaining the age of 18 years shall not be renounced by any person on his behalf. By Order 55 rule 64(6), a minor’s right to administration may be renounced only by a person assigned as guardian under sub-rule 3 of this rule and authorized to renounce by the Judge. Guardianship of Minors Order 55 rule 64 of the High Court of Anambra State (Civil Procedure) Rules 2006 provides for grants on behalf of minors. Thus, even though probate and letters of administration are not granted to minors, they can be granted on behalf of minors; to guardians. Thus, where the person to whom a grant would otherwise be made is a minor, a grant for his use and benefit until he attains the age of 18 years shall be granted (a) to both parents of the minor jointly or to any guardian appointed by a Judge; or (b) where there is no such guardian able and willing to act and the minor is a married woman, to any such next of kin or to her spouse if nominated by her.57 This is called grant durante minore aetate. As Kolawole, J.C.A. stated in Agidigbi v. Agidigbi (supra): It is settled law that grants of probate cannot be made to persons under age, but must be made to their guardians for their use and benefit until they attain the age of 18 but in this case the age of 21. Where a minor is sole executor, administration with the Will annexed is granted to his guardian or to such other person as the Court thinks fit until he comes of age, when a grant may be made to him.58 57 58 See the rest of the requirements in rules 64(2) – 64(6) of the same Order. Ibid., p. 128, C. 17 Minority and Administratorship When a person dies without making a will, he is said to have died intestate. When a will disposes of some of a deceased person’s properties only, he is said to be died partially intestacy. Whilst the rules of testacy will apply in respect of the deceased properties disposed of by will; the rules of intestacy shall apply in respect of the deceased properties not disposed of by will. As earlier indicated, a minor could be appointed as an executor of a will. Can a minor be appointed as an administrator of an intestate estate? A minor cannot be appointed the administrator of an estate. The Minor and Administration of Estates The personal representatives of a deceased person are under a duty to collect and get in the deceased’s real and personal estate and administer it according to law.59 Administration of estates involves essentially the payments of debts incurred by the deceased and distributing the residuary estate to the beneficiaries. Section 36(1) of the Administration of Estates Law of Lagos State provides thus: 36(1) The real and personal estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the real and personal estate of which a deceased person in pursuance of any general power disposes by will, are assets for payment of his debts (whether by specialty or simple contract) and liabilities, and any disposition by will inconsistent with this enactment is void as against the creditors, and the court shall, if necessary, administer the property for the purpose of the payment of the debts and liabilities. After clearing the debts of the deceased, the beneficiaries are entitled to the residue. The activities constituting the administration of estates are beautifully outlined by Sherring & Sladen as follows: 59 See Halsbury’s Laws of England, Fourth Edition, Vol. 17, para. 1119, page 578. 18 Basically, the duties of personal representatives are to find, secure and collect the deceased’s assets (including claims against third parties), to pay outstanding debts (including the funeral expenses) and the proper and reasonable expense of administration (including taxation), to transfer specific gifts to the legates, to pay pecuniary legacies and to account to the residuary legatees for what is left.60 Where there is a breach of administration of the estate of the deceased in respect of the interest of the minor beneficiary, the minor can sue the administrator for an account. In the case of Arije v. Arije,61 two junior brothers of one Alhaji Garuba Arije who died intestate applied for a grant of letters of administration in respect of the estate of the deceased. The letters of administration was granted to them as assigned guardians to the 10 minors of the deceased, for the purpose of administering the estate of the deceased for the benefit of those minors listed in the letters of administration until one of them attains the age of 21 years. The crux of appellants’ case in the lower court was that the administrators did not train the children of the deceased and that they did not render accounts of their stewardship. Thus, by a writ of summons, the appellants (plaintiffs at the lower court), who were some of the beneficiaries of the estate of the deceased, sued the respondents (defendants at the lower court) asking, among other things, for the following relief: (iv) AN ORDER compelling the defendants to render a comprehensive statement of account of the deceased’s estate. Such account is to be prepared by a Chartered Accountant stating income realized from the deceased’s estate since the 1st defendant took over management and administration of same. The Appellants lost at the lower court. They succeeded on appeal. Consequently, the Court of Appeal ordered for the rendering of accounts in terms of the relief sought by the appellants. Attainment of Majority and Incomplete Administration of Estates 60 61 Sherring & Sladen, Op. Cit., para. 4.1, p. 4. (2011) 13 NWLR (Pt.1264) 19 The statutory restrictions against the appointment of minors as executors or trustees apply only while the minority subsists. In other words, once a person attains majority, the law allows him to participate directly with the administration of the estate of the deceased, in the event the administration thereof is still incomplete. In other words, The administration during minority determines upon the coming of age of the minor or any one of several minors for whose use and benefit the grant was made. It does not determine upon the death of one of several minors, but if the guardian dies during their minority, a second grant becomes necessary62 A fresh grant of probate and administration issued to the minor after he has come of age is known as a cessate grant. This is not to be confused with a grant of double probate.63 As I remarked in an earlier work, however: “Catherine Rendell sees the distinction between cessate grant and double probate in terms of the number of executors originally appointed in the will. If a minor is the only executor, a cessate grant will be made to him on reaching majority; if he is one of the executors originally appointed in a will, double probate will be made to him on reaching majority.64 The consequence, however, would be different if all the minors die during minority. Thus, If all the minors for the use and benefit of whom the grant has been made die before reaching the age of eighteen the grant ceases, and a grant of administration de bonis non becomes necessary.65 Conclusion In the administration of estates, the protection of minority interests is a vital assignment for the Executors and Administrators of the said estate. Even though, a minor cannot be appointed an executor or an administrator, he takes part in this exercise of protecting his interests through the mechanisms of guardianship and trusteeship. While guardianship is employed at the stage See Halsbury’s Laws of England, para. 992. p. 518. Williams & Mortimer, Op.Cit.., p. 303 64 See A.O. Ezeonu, Op.Cit., para. 16.13, p. 231. See also Rendell, C. Op.Cit., para 8.11.3, p. 231. 65 Halsbury’s Laws of England, Op. Cit., para. 992, p. 518 62 63 20 of grant of the administration, trusteeship is employed at the stage of distribution of the residue. In the case of Arije v. Arije (supra), for example, two junior brothers of the deceased were granted letters of administration as guardians to the 10 minors of the deceased for the purpose of administering the estate of the deceased for the benefit of those minors listed in the letters of administration until one of them attains the age of 21 years. Even where minority interests are not involved, a minor is still entitled to demand an account of the administration of the deceased’s estate where a grant is made on his behalf. According to A.R.Mellows, “An administrator durante minor aetate has all the powers of an ordinary administrator, and he can therefore sell the estate in the course of administration. However, he exercises all his powers on behalf of the infant, and is accountable to the infant. The infant may, therefore, require the administrator to give him a full account of his administration even if the infant has no beneficial interest in the estate.”66 (Emphasis supplied). In respect of trusts, trustees are under an obligation to advise the cestuis que trust (the beneficiary) of their interest under a trust and, especially advise infant beneficiaries of their interests when they reach their majority. See Hawkesley v. May.67 Though a trustee has obligations towards the beneficiary, a beneficiary cannot tamper with the trust property without the consent of the trustees. Thus in the case of Aduke v. Adegun68 , it was held that a trustee cannot be compelled to ratify the transaction where a beneficiary sold a trust property as his own without the participation of the trustee. Therefore, there is no absolute exclusion of the minor from the administration of estates. He is only a subject of limitations and an object of liabilities. In other words, there are statutory restrictions to the part he can play in the administration of estates; there are equally attendant liabilities if the interests of the minor in the estate are compromised in the course of administration. On See The Law of Succession, Third Edition, 1977, London, Butterworths, pp. 346-347. The learned author placed reliance on the following cases: Fotherby v. Pate (1747), 3 Atk. 603; Taylor v. Newton (1752), 1 Lee. 15; Harvell v. Foster, [1954] 2 Q.B. 367. 67 [1956] 1 QB 304. Cited in Sherring & Sladen, op. cit., p. 142, para. 7.18. 68 (1958) SCNLR 203. 66 21 attaining majority, a minor can sue personal representatives for an account of the estate as happened in the case of Arije v. Arije (supra). A major conclusion of our study is that the administration of estates involves interplay of responsibilities and roles involving the characters of the guardian, the trustee and the infant beneficiary. 22