Succession Notes

SUCCESSION AND ADMINISTRATION OF PROPERTY
● Inter Vivos Transfer Of Movable And Immovable Property

An inter vivos transfer is a transfer of property made within a person’s lifetime. Under
common law, to determine whether a property is movable or immovable, the law to be
applied is the law of the place where the property is situated ie the lex situs.
NB. To determine the location or where a property is located, the lex fori is applied.
● Transfer of Movables
At common law, the law of the place where the property is situated (lex situs) governs
this [Glencore International AG v Metro Trading Int.]. In Ghana however, this area
remains res nova, meaning it has never before been decided by a court.
The case of Glencore v Metro Trading involved complex contractual arrangements and
disputes over the passing of title to oil held in storage in Fujairah. One of the issues
that were raised in the case was, what the applicable law in determining who held title
to oil stored in Fujairah was. The court held that the law of Fujairah governed the
transfer of title to movable property.
Dicey & Morris, The Conflict of Laws, (13th ed.) at p. 963 provided that The validity of a
transfer of a tangible movable and its effect on the proprietary rights of the parties
thereto and of those claiming under them in respect thereof are governed by the law of
the country where the movable is at the time of the transfer (lex situs).
● Transfer Of Immovables
Where immovables are concerned, the applicable law is the law of the place where the
property is situated (lex situs). This was evinced in the case of Davies v Randall.
● Administration Of Estates
I. Jurisdiction
II. Administration of Estates Act, 196 by 1(Act 63);

1. Section 1: The movable and immovable property of a deceased person shall devolve on
the personal representatives of the deceased person with effect from the date of death. In
the absence of an executor the state shall, until a personal representative is appointed,
vest (a) in the successor, if the entire estate devolves under customary law, or (b) in the
Chief Justice, in any other case.
2. Section 66 : Where a person appointed executor by will takes possession of and
administers or otherwise deals with a property of no the deceased person and does not
apply for probate within one month after the death, or after the termination of a suit or
dispute respecting probate or administration, that person may, independently of any other
liability, be punished for contempt of court.
3. Section 67 : Where administration is granted in respect of an estate of a deceased person,
a person shall not bring an action or otherwise act as executor of the deceased person in
respect of the estates comprised in or affected by the grant until the grant is recalled or
revoked.
4. Section 68 : If, while legal proceedings are pending in a court by or against an
administrator to whom a temporary administration has been granted, that administration
is revoked, the Court may order the continuance of the proceedings by or against the new
personal representative in like manner as if it had been originally commenced by or
against the new personal representative, but subject to the conditions and variations
directed by the Court.
5. Section 69: A person to whom the administration of the estate of a deceased person is
granted has, subject to the limitations contained in the grant, the same rights and
liabilities and is accountable in like manner as if that person were the executor of the
deceased.
6. Section 70 : The personal representative of a deceased person shall, when lawfully
required to do so, exhibit on oath in the Court a true and perfect inventory and account of
the estate of the deceased person, and the Court may require the personal representatives
to bring in inventories.
7. Section 71 : A personal representative may distrain on land for arrears of rent due or
accruing to the deceased person in the manner in which the deceased person might have
done if then living. (2) The arrears may be distrained for after the termination of the lease
or tenancy as if the term or interest had not determined, if the distress is made (a) within
six months after the termination of the lease or tenancy; and (b) during the continuance of
the possession of the lessee or tenant from whom the arrears were due. (3) An enactment
relating to distress for rent applies to a distress made pursuant to this section.
8. Section 72 : (1) A person making or permitting to be made a payment or disposition in
good faith under a representation shall be indemnified and protected in so doing, despite
a defect or circumstance affecting the validity of the representation. (2) Where a
representation is revoked, the payments and dispositions made in good faith to a personal
representative under the representation before the revocation are a valid discharge to the
person making them. (3) The personal representative may retain the moneys due to that
representative in respect of the payments or dispositions made which the person to whom
representation is afterwards granted might have properly made.
9. Section 73 : Where a person, to the defrauding of creditors or without full valuable
consideration, (a) obtains, receives or holds an estate of a deceased person, (b) effects the
release of a debt or liability due to the estate of the deceased,
that person shall be charged as a defaulting executor for a wrong done to the extent of the
estate received or coming to the defaulting executor's hands, or the debt or liability re
leased, after deducting, (c) a debt for valuable consideration and
without fraud due to that person from the deceased person at the time of death, and (d) a
payment made by that person which might properly be made by a personal representative.
10. Section 74 : Where a person as personal representative of a deceased person, including a
defaulting executor wastes or converts to that person's own use a part of the estate of the
deceased person, and dies, the personal representative of that defaulting person is liable
and chargeable, to the extent of the available assets of the defaulter, in respect of the
waste or conversion in the manner in which the defaulter would have been if then living.
III. According to the Succession to Movables on Death of Westlake, Private International Law
45, In England and in those countries and colonies of which the law is derived from that of England,
the personal "property of a deceased person can only be possessed under a grant from public
authority, usually judicial . Such grant is, in England, in one of three forms : (1) Probate of a will,
granted to the persons, one or more, appointed in such will as executors; (2) Administration with the
will annexed,where no executor is appointed by the will; (3) Administration, where the deceased left
no will. The executors or administrators have to realize the personal property of the deceased,
pay his debts, and distribute the surplus among those who may be entitled under the will, or by law in
case of intestacy. These duties are classed together under the name of administration which term has
therefore two meanings : it is used in opposition to probate, co express a certain description of public
grant, and it is used to, express that course of dealing with the, property granted which is expected
from the grantee, whatever was the kind of grant.
● Succession
I. Ghana adheres to the principle of scission as opposed to unitary succession. The scission
principles apply to successions, whereby succession rules differ depending on the type of
assets in inheritance. Here, the succession of an estate is subject to the law of the place where
it is situated whilst movable properties are subject to the law of domicile of the deceased.
II. Immovables: The important general conflict rule that the creation, acquisition, transfer
and extinction of interests in a thing are governed by the law of the situs of the thing,
applies in the case of immovables (land), to the succession to the beneficial interest in
things comprised in a deceased’s estate.
III. Movables: Here, succession to the estate of the deceased is governed by the domicile of
the deceased. This is made evident in the legal maxim “mobilia sequuntur personam”
which means “property follows the person”.

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SUCCESSION AND ADMINISTRATION OF PROPERTY

● Inter Vivos Transfer Of Movable And Immovable Property

II. Administration of Estates Act, 196 by 1(Act 63);

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