WHAT IS SUCCESSION AND WHAT ARE THE TYPES OF SUCCESSION?

Succession involves taking over someone’s property who is either dead or inter vivos;
*taking after somebody when the person dies, and * taking after somebody inter vivos
(when he is alive).

Taking after someone who is dead involves two types, testacy and intestacy. Testacy is
where someone succeeds with a documentary evidence call a will. Intestacy comes
about where there is no will.

1. TESTACY

WHAT IS A WILL? A will is a legal document that expresses the intention of the manner
in which a person(s) could succeed the testator/person giving out the property after
death. The Wills Act 1837 prescribes the formalities involved in executing a will.

FORMALITIES OF A WILL

1.) Writing – The first formality is that it must be in writing. Any form or type of writing
suffices whether in ink or type-written or both may suffice. A pencil writing over a
written will is presumed to be merely deliberate and could be excluded from probate (a
process by which a will is administered) unless it appeared to be intended and
operative. It must be noted that no special form of words need to be used when writing
a will but that it must be an intelligible document which indicates the intention of the
testator to make a will. In the case of Re Meynell (1949) W.N. 273, probate was granted
of written instructions to a solicitor which had been duly witnessed because of fear that
the testator might suddenly die.

2.) Signature Of The Testator – This is a necessary requirement for a will. A will must be
signed by the testator or someone else for him in his presence and by his direction. The
signature could be made in any way as long as there is an intention to execute the will.
It could be an ordinary mark, an ink stamped, name, a formal signature or an assumed
name. An ordinary seal on the will is not enough as the will must be signed by the
testator.

3.) Position of the signature – According to Section 9 of the Wills Act 1837, the
signature of the testator has to be at the foot or at the end of the will. Section 9 states:

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 ‘’No will, shall be valid unless it shall be in writing and executed in manner herein
after mentioned; (that is to say) it shall be signed at the foot or end thereof by the
testator, or by some other persons in his presence and by his direction…’’

The Wills Act 1982 in England has abolished this principle as it provides that the
signature can be at any part of the will once it appears that it is intended to give effect
to the will.

4.) Presence of witnesses – Section 9 of the wills Act 1837 further provides that the
testator must make the whole of his signature or acknowledge it at the presence of two
witnesses present at the same time: ‘’...and such signature shall be made or
acknowledge by the testator in the presence of two witnesses present at the same
time...”

Where the signature of the testator is made by someone else under his direction and in
his presence and the presence of the witnesses, the person directed need not to be
there for acknowledgement of the signature by the testator, but that the signature must
be made in the simultaneous presence of both witnesses. It is immaterial that the
witnesses do not know that the document is a will. It is also desirable though not
essential for witness to be of full age and intelligence.

5.) Signature of witnesses – The witnesses must sign in the presence of the testator. In
this regards Section 9 of the Wills Act 1837 further provides:

’’...and such witnesses shall attest and shall subscribe the will in the presence of the
testator but no form of attestation shall be necessary.’’

It is true that no form of attestation is necessary but the signature of the witnesses
when done should be satisfactory of the statutory requirement that will facilitate
probate. A will that does not satisfy the above requirement is not valid and of no effect.

WHO MAKES A WILL?

Section 7 of the Wills Act 1837 provides that, a valid will can be made by any person
who is:

a. Over 18 years of age; and

b. Capable of appreciating what he or she is doing.

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Thus, an infant cannot make a will unless according to Section 7 of the aforementioned
Act, he or she is a service man or woman entitled to make a privilege will. A will cannot
be made by a person who at the time he makes the will is mentally incapable by reason
of physical sickness, drunkenness or unsoundness of mind. The most basic test for
unsoundness of mind is:

Did the testator understand the nature of the act and its effect; the extent of the
property of which he was disposing; and the extent of the claims upon his bounty to
which he ought to give effect?

Hence the familiar phrase in wills and cases about will is that the deceased ‘was of
sound mind, memory and understanding’. With the constant development of medical
knowledge however, questions of mental capacity often creates extreme difficulty of
facts. It may sometimes be very difficult in particular cases to assess the testamentary
capacity of the testator at the material time.

Nevertheless, an affliction of the mind will invalidate the will only if it relates to
considerations relating to the will. In the case of Bank v. Good Fellow (1870) L.R. 5 Q.B.
549 at Pg. 565; Chief Justice Cock Burn said:

“...a degree or form of unsoundness which neither disturbs the exercise of the faculties
necessary for such an act, nor is capable of influencing the result, ought not to take
away the power of making a will.”

However, in the case of Re Bohrmann (1938) 1 All E.R. at Pg. 271, the testator was
found to be in the form of delusion which affected only one part of the dispositions of
his will. The judge decided in effect that the testator may have testamentary capacity to
make the greater part of the will and yet be incapable of making one specific bequest.

If a will appeared on the face of it to be rational, it will be presumed to have been made
by a reasonable testator. If however the will is challenged on the ground of incapability
the burden of proving that the testator had a sound disposing mind lies in he who seeks
to establish the validity of the will. So important is the question of capacity that, it is
surprising that there are no statutory requirements or other requirements about
contemporary medical or other evidence of fitness in case of old or infant testators.

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 TESTAMENTARY INTENTION

For a will to be valid the intention of the testator in making the will and the intention of
making a particular disposition must be voluntary. Where this is not, a will might be
opposed ‘’for want of Knowledge and Approval’’. This means literary that, at the
execution of the will the testator do not know the content or did not approved them.

In the case of incapacity of the testator, if no suspicion is attached to the will, then proof
of proper execution of the will is taken as sufficient evidence. If however, suspicion
arises, then the burden of removing such suspicion lies in the person proving the will. In
the case of Wintle v. Nye [1959] 1 All E.R. 552, it was held that, the degree of the
burden of dispelling or disproving the suspicion is as great as the amount of suspicion. In
this case, Colonel Wintle conducted his own case before the House of Lords and
reversed the decision of the Court of Appeal. The testatrix who was then 66 years of age
and in diverse businesses executed a will drown by her solicitor Mr. Nye by which she
appointed Mr. Nye to be the sole executor and left to him the residue of her estate,
which at her death was worth 115,000 pounds. Lord Simmons said:

‘’the degree of suspicion will vary with the circumstances of the case; it may be slight
and easily dispel. It may on the other hand be so grave that it can hardly be removed.
In the present case the circumstances where such as to impose on the solicitor as
heavy a burden as can be imagined’’

Another situation in which “want of knowledge and approval’’ is raised in opposing the
will is on the ground of undue influence. Undue influence here briefly means an
influence exercised by coercion, fraud or other improper means. It is always a difficult
allegation to establish. The burden is a heavy one. Once there is a prima facie proof of
capacity of execution and knowledge of approval, the burden to prove undue influence
rest upon those alleging it. Like the case of Wintle v. Nye supra, the allegation there
amounted to undue influence although the objection was formally on the grounds of
‘’want of knowledge and approval’’ There is undue influence if the other party imposes
his will in every sense upon the testator’s free wish. Undue influence must be the only
possible explanation before it was so found. The varying influences of everyday life,
strength of character, appeal to pity and affection, do not alone constitute undue
influence. In the case of Hall v. Hall (1868), the testator who was a farmer left property
worth between 15,000 and 20,000 pounds. His widow propounded the will and the
testator’s brother alleged that the testator had made his will because of his wife’s

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violence and threat for the sake of peace and quietness. The case was heard before the
jury and the probate Judge directed them in the following terms:

‘’To make a good will, a man must be a free agent. But not all influences are unlawful.
Persuasion, appeals to the affections, or ties of kindred, to a sentiment of gratitude for
past services, or a pity for future destruction or the like–these are all legitimate and
may be fairly pressed on the testator. On the other hand pressure of whatever
character, weather acting on the fears or the hopes, if so exerted as to overpower the
volution without convincing the judgment is a species of restrain under which no valid
will can be made’’

THE TESTATOR’S SIGNATURE

Section 9 of the Wills Act provides that the testator must sign the will. It may be in any
manner or mark. However, it is not limited to a signature by the testator alone. The
signature may be done by another person but in the presence of the testator and
directed by the testator. The agent may sign his own name or that of the testator.
Where the agent’s name is used, then it must be reflected in the attestation clause.
Where the will is sign by someone else for the testator, it cannot be admitted to probate
until the Registrar is satisfied that the testator knew of its content. In some situations an
Affidavit is sworn, explaining the situation or position.

However where the attestation clause is explicit in showing that the will was signed for
the testator by someone else under his direction and presence and that the content
where known to him, the Registrar will allow probate for the will. In Brown v. Skirrow
(1902) Pg. 3, Mr. Justice Gorrell Barnes states:

‘’...the Will’s Act is very precise and must be applied with strictness...’’

However in looking at the nature of the case, he suggested a reform of the law which
will avoid doubt. He stated:

“I have long held the view that it will be a good thing if wills were required to be
signed in the presence of some public officials who should be able to see that they are
properly executed”.

The fact in Brown v. Skirrow supra, was that a testatrix went into a shop of a grosser
Mr. Read who was busy in his shop with a commercial traveler but had an assistant
present in the shop called Miss Jeffrey, the testatrix produced the printed will which

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appeared to have been filled up, and asked the assistant to sign it, at this time Mr. Read
was still busy with the commercial traveler on the other side of the shop. A moment
later, the traveler left the shop and the testatrix approached Mr. Read to sign the will
saying to him: ‘This is my will, will you sign it?’ Mr. Read signed the will at that time
Miss Jeffrey went to the other side of the shop.

Assignment – with reference to Section 9 of the Wills Act 1837, discuss the validity of
the will of the testatrix in the case of Brown V Skirrow supra.

WITNESSES

Section 9 of the wills Act 1837 provides that the testator shall sign the will or it shall be
signed by someone else under his direction and acknowledged by him in the presence of
two or more witnesses present at the same time and such witnesses shall attest and
shall subscribe the will in the presence of the testator.

Who then is a witness? Any person may be a witness to a will except a blind person or
any other person who is not fully capable of appreciating his own conduct. An infant
may validly witness a will and so too an executor of a will; see Section 17 of the wills Act
1837. A beneficiary or spouse to a beneficiary may act as witness, but where there is a
devise made to that beneficiary under the will, the gift or such devise would be
invalidated; see Section 15 of the wills Act 1837. This rule has however been relaxed
under the provisions of the Wills Act 1868, which provides that, where there are two or
more witnesses attesting to the will, the gift will be valid.

Section 14 also provides that, a will remains valid even if at the time of the execution or
at any subsequent date, a witness of the execution is incompetent to give the evidence
in law. It should be noted that attesting witnesses are ‘witnesses of the court’ and in
event of litigation about the will, properly interested parties are to see their proofs of
evidences, their evidence however is not conclusive. Thus, even when their evidences
are doubtful, probate may be given.

PRESENCE OF WITNESSES

When a testator signs or acknowledges the will, the Wills Act provides that, the testator
signed the will in the presence of two witnesses. However it is sufficient that, he signs
the will beforehand and not in their presence but he must acknowledge his signature at
the joint presence of the two witnesses and before either of them have signed the will.

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They must have the opportunity of seeing the testator’s signature attesting proof,
although whether or not they saw it is immaterial. There must be however some proof
direct or indirect that the signature of the testator was there on the will at the time of
the signature of the witnesses. Although it is not necessary for the witnesses to know
that it is a will. It is important to know that, the testator’s signature may be
acknowledged either orally or by gesture. Both witnesses must sign the will in the
presence of the testator but not necessarily in each other’s presence. No oral
attestation is necessary when the witness is signing the will. The initials or mark are
sufficient provided that they are intended to represent him.

A witness can sign by mark even if he can write. Unlike the testator, it is not necessarily
for a witness to acknowledge his signature made on a previous occasion. The witnesses
need no form of attestation of their signature, but the testator needs it. The attestation
clause usually although not necessarily appears with the testator’s signature at the end
of the will. The test is that, the signatories must have intended to attest to the testator’s
signature.

BLIND OR ILLITERATE TESTATOR

It is in practice that the will should be read over to a blind man or an illiterate for his
understanding and approval. This is however strictly not necessary as a will of such a
testator will be admitted to probate if it is proved to have been prepared in accordance
with the wish of the testator. The same consideration may be applied to cases of dumb,
and deaf, paralyzed from apoplectic stroke testators.

PRESUMPTION OF REGULARITIES

The presumption that “all things are presumed to have been done rightly” is applicable
in all branches of law. In relation to the Wills Act, it supports the due execution of the
will whether the will appears to have been properly executed; see the case of Re
Denning (1958) 2 All E.R. 1. This presumption was however rebutted in the case of Re
Strong (1915) Pg. 211 and Re Peverett (1902) Pg. 205.The presumption in Re Denning
followed in the reasoning of Re Peverett. In Re Denning, MR Justice Sachs quoted with
approval the words of Sir Francis Jenne in the case of Re Peverett:

‘’Two things may be laid down as general principles; the first is that, the court is always
extremely anxious to give effect to the wishes of the person if satisfied that they really

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are their testamentary wishes; and, secondly, the court will not allow a matter of form
to stand in the way if the essential element of the execution have been fulfilled’’

ALTERATION, OBLITERATION, INTERLINATION AND ERASURE

For this aspect see Section 21 of the Wills Act 1837. This Section deals with alterations
made after execution and it has the following effect only if:

(a.) They are executed in accordance with Section 9 of the Wills Act 1837;
(b.) They are alteration signed as required by the second part of Section 21; or
(c.) If the alteration is an obliteration of the original word or effect of the original
word “are no longer apparent”, in which case the obliteration is of necessity
effective.

In practice it is not usually best to alter a will if after its execution it is desired for
change. The safest way is to make a new will.

It is important to note that the phrase “no longer apparent” is now different in use as it
was in 1837 due to technological advancement. Words which were no longer apparent
in those days may well be apparent now with the aid of technology as certain tools have
been evolved for deciphering erased or altered documents. The test however appears to
be that, any scientific or technological technique used to aid in determining the original
meaning of the words in the will should not involve physical operation upon or
tampering with the document itself. In Re Gilbert (1893) Pg. 183, paper posted over
words on the back of a codicil was removed but merely for the purpose of seeing
whether they are words of revocation.

A Will that has been revoked cannot be revived by cancelling the revocation. Also, the
fact that part of the will is written in different ink or hand writing to the rest does not
necessarily makes it an alteration. In the case of Re Itter (1950) 1 All E.R. 68, the
question was whether the original words were apparent within the meaning of Section
21. The hand writing expert cannot remove the piece of paper because it will involve
tampering with the document. He therefore had to take infrared photo of the area of
the document to reveal the original figure underneath the handwriting. It was held that
the original figures were no longer apparent because apparent here was meant
apparent in the face of the will itself. If however, by looking at the document itself, the
human eye can see the original then they are still apparent however elaborate the
device used to assist the human eye. In this particular case the original words were no

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longer apparent as the only way was to transpose the document into another
document.

If the entire bequest is obliterated it is clearly revoked in its entirety, If however part of
a bequest is revoked, e.g. the amount or name of a beneficiary, then the effect of the
erasure will be governed by the doctrine of “dependent relative revocation”

OFFENSIVE OR LIBELLOUS WORDS USED IN A WILL

The court has power to exclude from probate words or passages in a will which are
offensive or libelous. In Re Bowker (1932) Pg. 93, the court directed that a copy of the
will admitted to probate should exclude certain passages in which the testator had given
direction for the disposal of his body because they were offensive to his family and
would have been broadcasted in the press and particularly in the area he lived.

In Re White (1914) Pg. 153, the court also deleted a passage in the will by which a
testator gave a derogatory and offensive explanation of leaving nothing for his wife. The
offending words are not expunged from the will itself, but ordered to be omitted from
probate and from subsequent copies of the will.

A testator has right to give reasons why he has disposed of his property in a certain way,
but he has no right to use his will as a means of injuring by words which has no bearing
upon his disposition.

This jurisdiction of the court is often exercised cautiously and it is often invoked through
a motion. In the case of Re Bohrmann (1938) 1 All E.R. 271, it was held that the court of
probate has power only to omit words but has no power to add words to a will.

REVOCATION OF WILL

See Section 20 of the Wills Act 1837.There are four ways of revoking a will. These are:

1. Marriage

2. A later will or codicil

3. A written declaration of intention to revoke executed in a manner of a will

4. Intentional destruction

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1.) Marriage – Section 18 of the Wills Act 1837 provides that “every will made by a man
or woman shall be revoked by his or her marriage.” There are however certain radical
exception made by this Section, but a further exception is that made by Section 177 of
the Law of Property Act 1925, which provides that, “A will expressly made in
contemplation of marriage shall not withstanding anything in Section 18 of the Wills
Act 1837…not revoked by solemnization of a marriage contemplated.” This applies to
wills made after 1st of January 1926. The will must specify the particular marriage
contemplated. It is not enough that the will is merely in contemplation of marriage in
general.

2.) A Latter Will or Codicil – A latter will or codicil may revoke a previous will only if it
expressly say so or if it does so by clear implication.

3.) A Written Declaration of Intention to Revoke – A written declaration of intention to

revoke executed in the same manner as a will may also revoke a will. This principle was
applied in the case of Re Spacklan’s Estate (1938) 2 All E.R. 245. A testatrix made a will
and deposited it at her bank. About a month later when she was seriously ill, she signed
a letter to the bank manager in which she asked him to destroy the will. Her signature
was witnesses by two people as required by Section 9 of the wills Act. It was held by the
court that the destruction of the will by the bank manager would not itself have been a
revocation because it was not done in the presence of the testator. The question was
whether the request to destroy the will amounted to a declaration of intention to
revoke it. The court of appeal held that the will was revoked although the Master of
Rolls seem doubtful that the intention could be inferred in the absence of an express
reference to revocation or at least much more forceful language.

4.) Intentional Destruction – Here the testator must have intended to revoke the will.
The destruction must be by the testator or at his direction and in his presence. If it was
not the testator’s prior consent, he cannot subsequently ratify the instructions. In Gill v.
Gill (1909) 157, the testator’s widow said she had torn up his will in temper after he had
made a remark to her when he was drunk. He had not authorized her to do so but there
was some evidence that he later knew what she had done but did nothing about it. It
was held that whatever the testator did or said afterwards could not ratify an act done
without authority at the time. Where a lost will is last known to have been in the
possession of the testator and cannot be found after his death, there is a presumption
that he destroyed it ‘animo revocandi’ meaning ‘with intention to destroy’.

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 This presumption can of course be rebutted by surrounding circumstances and cases of
lost will give rise to different question of fact. Because revocation by destruction
depends upon the presumed intention of the testator, a will cannot be revoked in this
manner by a person of unsound mind. Similarly, in cases of lost will, if the testator may
have been of unsound mind at the time he had the will, the burden of proving that he
has sufficient mental capacity to revoke is upon those who claimed it was revoked. For
revocation to be effective, the destruction need not be complete, for example where
part of the will is lost, but the destruction must be sufficient to show the intention to
revoke. Merely crossing out the will by pen is not enough although it is enough to
scratch out vital parts of it with a knife is sufficient. Destruction of a will prima facie
revoked its codicil too. But the conclusiveness of this depends upon particular
circumstance.

REVIVAL

A revoked will can be revived only by proper re-execution or by a properly executed

codicil which show an intention to revive it, see Section 22 of the Wills Act 1827. The
intention of the testator to revive the will must appear from the codicil or the re –
executed will, but this is to be inferred in the light of all the circumstances and evidence
of these circumstances is admissible. In Re Dawis (1957) 279, a testator made a will in
favour of a lady to whom he was not married. In October 1931 he married her and of
course this revoked the will. In May 1943 he wrote on the envelope which contains the
Will: “The herein named Ethel Phoebe Horsley is now my lawful wedded wife.” This
statement was properly signed and attested in accordance with Section 9 of the Wills
Act of 1837. It was held that in the circumstance of the case, the writing in the envelope
showed an intention to revive the will. Thus the Will and the envelope were both
admitted to probate. Revoking a Will does not revive a previous Will, for instance if a
Will is made in 2000 and revoked by another Will in 2004, the 2000 Will cannot be
revive by revocation of 2004 Will. If a revoked Will is “re-published” by a later codicil, it
takes effect as if made at the same time as the codicil and it may incorporate certain
documents by references and may also remedy other defects in the Will as originally
executed.

A CODICILE

A codicil is a testamentary document supplementary to the Will and is subject to the

same rule as the Will. Although supplementary, it can supplant the provisions of the

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Will. A testator may make any number of codicils as can be, and can vary or revoke part
of a Will or a previous codicil. A Will and all its codicils must be proved together. But a
codicil can be challenged or executed without rendering the Will ineffective or invalid
and the later discovered codicil can be proved separately. A codicil often republishes a
Will by expressly confirming it and in such event the Will is deemed to have been made
at the date of the codicil for the purpose of construction and interpretation of its
provisions. Sometimes a codicil revokes a Will. If the only testamentary document that
can be found is a codicil without a Will, probate will be granted may be granted to the
codicil alone.

THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION

This doctrine is briefly the principle of conditional revocation. It arises where a testator
is presumed to have only intended to revoke an existing Will on the basis of a certain
belief usually the presumption that he was replacing it by an effective latter Will. Thus, if
a testator makes a latter Will, revoking his previous Will but the latter Will turns out to
be invalid for some reason, the earlier Will may be saved by the doctrine. A different
example of the doctrine arises where a Will is destroyed in the erroneous belief that it
no longer effective or that an intestacy will achieve the same result. In Re Botting (1951)
2 All E.R. 997, the testator made a Will in 1947 but in 1949 he made another Will which
revoked the earlier Will. The 1947 Will remained in the testator’s possession but could
not be found after his death and so the law presumed to be destroyed by him “animo
revocandi”. Indeed the fact he made a will in 1949 supports the presumption. However
the 1949 will was not properly executed. The judge had to decide whether the testator
should have been presumed to destroy the 1947 will irrespective of the 1949 will or to
destroy it only because he believed that the 1949 will was effective.

The judge decided that the latter was the case, that the revocation was conditional upon
the validity of the latter Will. And because the condition was not satisfied the 1947 Will
stood. Probate was therefore granted on the 1947 Will on the basis of a copy which had
been kept.

MARKS AND OTHER FEATURES ON THE FACE OF A WILL THAT CAURSE EXPLANTION

The physical condition of a Will or codicil is naturally of significant. A burned mark or

tear may have been made by the testator “animo revocandi” and so the Registry require
this possibility to be rebutted by evidence as to the state and circumstance in which the

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Will was found. This evidence is often given in what is known as affidavit of plight and
condition. Some larks on the Will, example pie holes, may suggest that the testator
amended or alter the Will by attaching a codicil or a further Will and this possibility will
lead to the requirement for an affidavit of search to show that no other document could
be found.

EXECUTORS

An executor is a person nominated or indicated in the Will to carry out its terms or if so
limited some of them. Anybody may be appointed as executor. Where an infant is
appointed a sole executor, grant is made to his guardian or somebody on his behalf until
age 18. If the infant is however one of several executors, the grant is issued to the
others with power reserved to him when he becomes age 21. If a person of unsound
mind is appointed sole executor, a grant is made to somebody on his behalf “for his use
and benefit” until he becomes of sound mind, or if he is one of several executors, the
grant will be issued to the other with power reserved to him when he becomes of sound
mind. An executor may be appointed generally, conditionally, or limited as to time or
property etc. The executor executor’s have first claim to a grant and probate is granted
only to an executor as distinct from letters of administration which can be taken out by
personal representatives under intestacy. If no executor is expressly nominated, it may
appear from the Will that some particular person is intended to act as executor; such
person is known as executor according to tenor. Even where the executor is nominated,
it may appear from the Will that another person in intended as an executor. He too
would be known as an executor according to tenor. Not more than four executors could
be identified from a Will. The executor has the duty of attending the funeral of the
testator and administering the estate according to the general law according to the Will.
If the testator’s property vest in the executor automatically upon death accordingly, an
executor can before grant take any steps which do not require former proof of title to
the estate.

TYPES OF WILLS

1.) Duplicate Wills –When the Will is made in duplicate, triplicate etc. there is in fact
only one Will. It is the execution that is duplicated. Any of the copies is admissible to
probate as being the Will. Revocation of a copy of the Will revoks the whole Will.
Accordingly, the absence of other copies must be explained when a grant is claimed. If

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one copy was retained by the testator and cannot be found after his death, the
presumption will arise that he destroyed it “animo revocandi”

2.) Mutual Wills – Where two or more persons e.g. wife and husband agree to make a
Will in identical or similar terms in favour of each other the result is known as mutual
Wills. The basis of mutual Wills is an agreement that the survivor will not revoke his or
her Will and it can include express or implied agreement that neither party will revoke
at any time. The existence of mutual Will does not however actually prevent revocation
but if there was an express covenant against revocation. If there was express covenant
against revocation and the second testator to die revoked by subsequent Will or
destruction not marriage or revocation, a claim lies against his estate.

These are will of two or more persons contain in one document and may be mutual also.
A joint will is provable on the death of each testator as to his or her part unless it
stipulates that it is not to come in effect until the death of his survivor.

3.) Independent Or Separate Wills – Two or more consistent wills may be admitted to
probate together if it is clear that the testator intended that they should together
record complete intention and even where the second will is partially inconsistent with
the first, both may be admitted to probate if they can be read together the first be
revoked only insofar as it is inconsistent with the second.

4.) Conditional Wills – Where there is clearly a condition attached to the taking effect of
a will, probate will not be granted unless and until the condition is fulfilled. A condition
is however to be distinguished from expression of a reason for making a will and from
expressions of possibility, see Re Vine (1907) 147.

5.) Wills Of The Same Date – These types of will tend to create difficulties sometimes.
The court often links to admit both if possible. But in cases of real doubt may decline to
give probate to both. It is therefore important to note that in making a will, it is
necessary to state the date of the will clearly and where possible even the hour.

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INTESTACY

 Definition
 Persons entitled of the grant of intestacy
 Distribution on intestacy
 Special rights of surviving spouse
 Administrator’s bond
 Administrator’s title
 Partial intestacy

GIFT INTERVIVORS

 Definition
 Persons Entitled to gift intervivos
 Differences between testacy, gift intervivos, and intestacy

2. INTESTACY

DEFINITION: Intestacy occurs when a person dies leaving no will or a valid will. It also
arises when those interested under a purported will are formally cited to propound it
and failed to do so. Partial intestacy arises when part of an estate is not dispose by will
e.g. where there is an unbequeathed residue. Representation in the case of complete
intestacy is by letters of administration. Persons entitle to grant of letters of
administration are broadly those entitled to the estate in order of entitlement. It must
be however noted that, there are those special kinds of letters of administration that
are not necessarily confined to cases of intestacy e.g.:

1. Administration ‘Pendente Lite’ (Administration Pending Suit) – this is a limited

grant given to a person entitled pending proceedings in court.
2. Administration Ad Litem (For The Purpose Of Proceedings) – it is a grant given to
a nominated personal representative.
3. Administration With Will Annexed – this is where a will is proved other than by
an executor.
4. Administration Durant Absentia – it is a grant given during the absence of a
personal representative abroad

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 5. Administration Ad Colligenda Bona (For Collection of the Asset) – is often an
interim grant given for collection and preservation of assets.
6. Administration De Bonis Non – is a grant given for completing administration.
7. Administration Cessante Grant – is often the grant given where a limited grant
expires and a re-grant is necessary.
8. Grant Caeterarum (Of the Rest) – is often a grant for part of the estate.

Section 2 of the Interpretation Act of Devolution of Estate Act 2007 defines intestacy as
Intestacy means a person who dies without having made a will and includes a person
who leaves a will but dies intestate regarding some beneficial interest in his real or
personal estate.

“Letters of administration” means any letters of administration granted under

customary laws or by the court either generally or with a copy of the will annexed or
limited in time or otherwise

PERSONS ENTITLED TO A GRANT OF INTESTACY

Persons entitled are often in order of priority as follows:

a. Surviving spouse
b. Children; including posthumous births and issues of deceased children
c. Parents
d. Brothers and sisters and issues of brothers and sisters
e. Brothers and sisters of half-blood and issues of deceased such.
f. Grandparents.

DISTRIBUTION OF INTESTACY

The Common Law principle of intestacy is that immediately someone dies his property
goes straight to the administrator General. This is to prevent chaos. Letters of
administration will be taken out for the administration of the estate.

Where there is no body to inherit the property, it immediately goes also to the
administrator General as bona vacantia.

Section 4 of the Devolution of Estate Act 2007 provides that where a person dies
intestate, and all debts duties and other lawful expenses are paid from the estate shall
be distributed as provided for in the Act.

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Section 6 of the Act provides that where the intestate is survived by a spouse with no
children or issue the whole of the estate shall devolve to the surviving spouse. But
where more than one spouse, then it shall be distributed in proportion to the duration
of their marriages and other factor such as their contribution to the estate. However,
where there is family property, chieftaincy property, and community property under
customary law, such property cannot form part of the estate.

Section 7 stipulates that where the intestate is survived by only one child and no spouse,
parent, or grandchild, the whole estate shall devolve to the surviving child. But where
there is more than one child but no spouse parent or grandchild, the estate shall
devolve to the children in equal shares.

Section 8 provides that, where the intestate is survived by a spouse, child and parent,
the estate shall be distributed in the following manner: 35% to the surviving spouse,
35% to the surviving child, 15% to the surviving parent and 15% in accordance to
customary law or Muslim law as applicable.

Section 9 gives detail of manner of distribution specifying categories of person and what
they should benefit from the estate of the intestate.

Section 9 (1) states that where the intestate is survived by only a spouse or child or both
and the estate includes only a house, then it shall devolve to both of them and they shall
own it as tenants in common.

Section 9 (2) however states that where there are more than one spouse or child, then
the one house shall devolve to them and they shall own it all as tenants in common.

Section 9 (3) states that where more than one house is included or involved in the
estate, the surviving spouse or child or both of them as the case may be, shall determine
which of these houses shall devolve to such spouse or child or both of them, and where
they devolve to both of them they shall hold both of them as tenants in common.

Section 9 (4) provides that the surviving spouse has the right to make the first choice
and the child shall make his later.

Section 9 (5) states where there are more than one house and more than one spouse
and child, they shall all agree among themselves as to the allocation of the houses. But if
there is no compromise then the court upon an application of an interested party the
court shall have jurisdiction to determine the allocation of such property.

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Section 9 (6) states that where there is only one house and no surviving spouse then the
surviving child can take absolutely, but the surviving parent shall have the right to stay
in such house for his life time.

Section 9 (7) states that where the estate includes only one house the surviving spouse
shall have the right to stay in the house for his life time.

Section 9 (8) states that where there are more than one houses, the surviving spouse
shall have the right to stay in any one of the house, but where there is disagreement
and upon an application by an interested party, the court shall have jurisdiction to
determine as to which house the right of the spouse shall apply.

Section 10 talks about where the intestate is not survived by a child or spouse or
grandchild but by parent or brother or sister, 75% shall devolve to the parents and
brothers and sisters and 25% distributed in accordance to customary law or Muslim law
as applicable.

It is important to state what Section 15 states; where there is a family property

chieftaincy property or community property which form part of the estate and which
has been cohabited by the spouses as their matrimonial home, the surviving spouse
shall have the right to reside in that property during his lifetime.

Section 17 deals with the inheritance of personal chattel where an intestate is survived
by a spouse or child or both of them as the case may be all personal chattels shall be
inherited by them equally.

Section 18 indicates that where the estate value is less than 15 million, then it shall be
distributed in this manner:

1. First it shall devolve to the surviving spouse or child or both of them.

2. Secondly where no surviving spouse or child then it shall devolve to the parent.

3. Where there is no surviving spouse or children or parent then it goes to the surviving
brothers and sisters.

4. Where no surviving spouse, child is, parent or brothers and sisters, then it shall
devolve to the next-of-kin.

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Section 26 of the Christian Marriage Act Cap 95 Laws of Sierra Leone 1960 has been
repealed by the Devolution of Estate Act 2007. Section 9 subsection 1 of Cap 96 of the
Muslim Marriage Act Laws of Sierra Leone has also been repealed.

The Second Schedule of the Administration of Estate Act Cap 45 has been repealed and
replaced by Section 8. Muslim marriage act cap 96 the eldest son of full age takes out
letters of administration or the official administrator. A person is considered of full age if
he is marriage.

The caveat is that where there is a creditor to the intestate who is not a Muslim, he may
apply to a court to take out letters of administration and if letters of administration had
been earlier on given to the intestacy such letters will be canceled (section 9 (2) Muslim
Act).

The adoption Act no. 9 of 1989:

Section 13 states that where at any time after making an adoption order the adopter or
adopted person or any other person dies intestate, in respect of any property which
might have been disposed by will, that property shall devolve in all respect as if he the
adopted person were the child of the adopter born in lawful marriage and were not the
child of any other person.

Section 14, 15, and 16 are basically talking about inheritance under testacy

Section 16 (1) talks about customary law and how it applies to the adopted person
including intestacy. It states that an adoption order shall not have effect to make the
adopted person a member of any clan, lineage or other group recognized under
customary law, but if the adopter is a person subject to customary law and practice,
then as from the date of the adoption order the adopted person shall be a person
subject to customary law and practice and all such rules of customary law and practice
including those relating to intestacy as applied in the case of the adopter shall apply in
the case of the adopted person.

In the case of joint adoption by the husband and wife it is stated in section 16 (3) the
adopter shall be taken as references to husband and wife.

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 EXECUTORS AND ADMINISTRATORS

In our jurisdiction as well as most common law jurisdictions the administration of an

estate on death arises if the deceased died intestate; meaning he did not leave a will or
some assets are not disposed of by the will or where a person dies leaving a will
appointing an executor and that executor predeceased the testator upon the testator’s
death.

An administrator sometimes known as administratix if female, act as personal

representative of the deceased in relation to land and other properties. Usually a
creditor may claim and obtain a grant of administration where a debt is claimed on the
estate of the deceased. It is usually the court that appoints an administrator or
administratix to administer the estate of someone who dies intestate or partial intestacy
arises. An executor on the other hand is a person appointed by the testator in his will to
administer the property disposed in the will upon the testator’s death.

A testator should find out whether his or her choice of executor is willing to serve in that
role. A person named as executor in the will is free to accept or reject the position
within a reasonable time following the death of the testator. If the executor rejects
within a reasonable time, an application is made to the court for the appointment of a
new executor based on the circumstances to be considered by the court. Many people
choose their surviving spouses as executors since that person has the greatest
knowledge of their financial affairs as well as family situation. Other named several
persons to serve as co-executors to ensure that their estate will be handled fairly and
honestly. Both executors and administrators are known as personal representative of
the deceased. They are also officials of the court because they derived their authorities
from court appointment. They are fiduciaries or trusted representatives of the
deceased; as such they have absolute duty to administer their estate solely for its
beneficiaries. Probate is a process by which the court establishes that a will is valid, it
involves the process of applying to the court for a grant of letters of administration. It is
a general rule that executors and administrators are required to take an oath as
required by statute before beginning their duties. The taking of an oath constitute an
acceptance of their office. In our jurisdiction as well as other Common Law jurisdictions
the statute requires the executor or administrator to find a bond to protect those
interested in the estate. The amount prescribed in the bond will be forfeited if the
representative is found to have deliberately mismanaged the estate.

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Also within the probation of statute; the Devolution of Estate Act 2007 provision is
made against protection for intermeddling with the estate of the deceased obtaining
fraudulent letters of administration and deprivation of beneficiaries. There is provision
for liability for anyone found committing these acts or offences. The authority of the
administrator or executor terminates only when the estate has need completely
administered or the executor dies, or s suspended or removed from office for grounds
specified by law such as mismanagement, waste, abuse, disloyalty, improper
administration, negligence, or other misconducts in the administration of the estate. An
executor or administrator can also be removed for failure to file a proper inventory
amount or return of tax or failure to comply with court order or where the
representatives personal interest conflicts with his official duties or where there is such
enmity between the personal representatives and the beneficiaries that it might
interfere with proper management of the estate. The general and primary duties of
administrator or executor are to administer the estate in an orderly and proper manner
to the best advantage of all concerned and to settle and distribute the assets of an
estate as quickly or reasonable as practicable.

Executors must submit the will to the probate division of the High Court of Sierra Leone
and then dispose of the estate according to the will where probate has been granted.
Both executor and administrator must make an inventory and appraisal of the estate
and then file that information with the court. Executors and administrators are held
liable for debt taxes of the estate as well as loose resulting from unauthorized or
improper investment of estate funds. As a general rule both executors and
administrators are allowed a reasonable compensation for the services they perform to
the administration of a deceased estate. Such a right is however controlled by a statute
unless the will specifically provides the amount of the executor’s or administrator’s
compensation commissions are most often the common forms of compensation to
executors and administrators.

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 PRINCIPLES OF LEGISLATIVE DRAFTING

In attempting to define legislative drafting, it is perhaps more helpful at the outset to

say what it is not.

Legislative drafting does not consist of simply putting legislative proposals into a
legislative format or legal language. Drafters are not mere scriveners, required just to
write out their instructions into a form of law. The development and preparation of
legislation is much more than that.

Legislative drafting is the art of converting legislative proposals into the form of a legally
sound and effective law. It must be drafted in a clear and unambiguous manner.
Legislation is the framework within which any society functions.

Reed Dickerson has described legal drafting as ‘the crystallization and expression in
definitive form of a legal right, privilege, function, duty or status’. This definition
recognizes the dual aspects of legislative drafting:

- The conceptual aspect, in which the drafter ascertains and perfects the concepts
to be employed in the draft.
- The literary aspect, in which the drafter selects the best means of expressing
those concepts.

Drafting is first thinking and then composing.

THE FUNCTION OF DRAFTERS

1. They are responsible to provide a high quality drafting service to the government.
2. They vet all non-governmental bills and all subsidiary legislation made by non
governmental bodies.
3. They are keepers of the Statute book, a duty to protect the integrity of the
Statute book.
4. They advise the government on matters relating to legislation and assist the
passage of legislation through the legislative process.

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 HOW IS LEGISLATION DRAFTED

The uninitiated may tend to think of legislative drafting principally in terms of writing. In
fact, the writing part is only one step in the process. There are a number of important
steps.

1. The drafter must have a thorough understanding of the proposal

2. He must be familiar with all the law that may affect the proposal.
3. He must ensure a thorough analysis to enhance it is conceptually sound and that
there are no legal impediments to its implementation.
4. He is to produce law that is conceptually sound and legally effective.
5. He must ensure the production of series of draft proposals for consultation.
6. He is to present the final agreed draft to go through the formal process of being
made or becoming law.

GOALS OF LEGISLATIVE DRAFTING

There are principally two goals:

1. To ensure the law says what it is intended to say.

2. To communicate the law clearly and effectively to the persons who are affected
by it, the officials who administer it and the judges who interprets it.

Law means what the courts determine it means – and they will do this by applying the
substantial body of legal rules known as the principles of statutory interpretation. To put
it in a constitutional context, the role of the courts as the final authority on the meaning
of legislation is one of the most important components of the rule of law. Law must be
sufficiently certain that people who are subject to it can know their rights and
obligations.

In drafting legislation, legislative councils are not merely putting words to government
proposed policy. They are giving a legal opinion, based on the application of the
principles of statutory interpretation, that the words we are writing will have the
intended legal effect.

The drafting style must be as understandable as possible to the people who use it. They
adopt the use of modern language, improved formats and a plain language writing style,
all with the goal of making the law more accessible to both courts and the general
public.

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 CONSTRAINTS

Statutory interpretation is the domain of the courts. This imposes a number of direct
and indirect constraints on the style of legislative drafting.

1. Legal principles
2. Historical style

KEY PRINCIPLES OF STATUTORY INTERPRETATION

Three key principles of statutory interpretation:

1. Different words mean different things

This principle assumes that different words intended different legal effects. The
assumption applies even if words are synonymous of each other. For e.g., to refer to
‘the purposes of this Act’ in one section, and then to the ‘goals of this Act’ in another,
would indicate that different meanings were intended. Or, to refer to ‘a person’s
property’ in one provision, and then to ‘the person’s land in the next, would suggest
that the first was to be read in its broader sense of what is known in legal terms as ‘real
and personal property.

2. Every word has a meaning

This principle assumes that every word of an enactment is intended to have legal effect.
The assumption has a number of components;

- Legislation will not say anything that it has already said.

- Legislation will not say anything that does not need to be said.
- Words in one place but not in another intend a different effect.

3. Ordinary meaning in context

There is the overriding general principle, as confirmed by the components:

- Words are to be given their ordinary grammatical meaning, unless expressly

provided for in the legislation or in the Interpretation Act.
- Meaning will be drawn from the entire context of the enactment, not only from
the single provision in which the words are found.

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 - Meaning will be determined so as to best accord with the scheme of the Act, the
object of the Act and intention of Parliament.

The court will consider; what an Act does and how it operates; what appear to be the
purpose of the Act and the intention of parliament.

This principle has many implications for legislative drafting. Drafters will object to
defining a word to give it its ordinary meaning, but insist on a definition if there is to be
some restriction on or extension of the ordinary meaning. Care must be taken so as to
be aware of the whole ‘picture’ of the Act – a change of language in one section may
require parallel changes in a number of other sections; or an intended change in effect
for one section may inadvertently change the effect of other sections.

LEASES

A lease is an interest in land for a specific period. It has a definite period to determine. A
lease can also be a purchase of an interest/estate in land less than a fee simple.

A contract for a lease must be evidenced by a memorandum in writing signed by the

party to be charged – S. 4 of the Statue of Frauds 1677.

S. 3 of Real Property Act 1845 state that ‘a lease required by law to be in writing is void
for the purposes of creating or conveying a legal estate unless made by deed.

FORM OF A LEASE – DIVISIONS

It must be stated that there are similarities between the parts of a conveyance and a
lease. There are however, there are distinct differences.

1. PARTIES AND COMMENCEMENT

It contains the commencement and names of the parties to a lease. The parties should
include the name(s), address, occupation of the persons to avoid confusion, ambiguities
or ambivalence. You describe the parties to be certain of their identity.

2. RECITALS

It contains any introductory matter necessary to explain the lease and any narrative
matters to be incorporated into the lease. In a lease, recital becomes less important
than in a conveyance. This means you do not go into details about title or estate of the

25
lessor/landlord. You are just creating a term out of the estate. Except in a sub lease,
where it might be necessary to explain those factors.

3. DEMISE

It contains the words necessary to create the terms of the lease. If there is no express
covenant for quiet enjoyment, any form of demise implies that the landlord is entitled
to grant a lease and that the tenant shall have quirt enjoyment of the premises.

The demise states the interest taken out of the estate.

4. PARCELS

It contains a description of the property not more expressly or impliedly than it is

intended to pass to the tenant.

5. HABENDUM

It states the name of the tenant, and date of the beginning and end of the term. It
stipulates the interest granted in the estate, that is, what is granted in the leasehold.
The interest it gives is less than a freehold, and it is certain for a fixed period of duration.

6. REDDENDUM

Contains a reference to the rent the tenant is to pay. The dates on which the rent is to
be paid, the date on which the first payment is to be made, and a condition that if the
landlord re-enters into possession, the tenant must pay the proportionate amount of
rent due up to date of such re-entry.

7. PROVISO FOR RE-ENTRY AND FORFEITURE

It stipulates that the landlord may re-enter into possession of the premises and
determine the tenancy, if the rent is in arrears for twenty-one days (or period specified)
whether formerly demanded or not, or the tenant is in breach of any of his covenant.

COVENANTS BY LANDLORD AND TENANT

This requires the skill and tact of a lawyer. These covenants can be expressed or implied;
or are usual covenant. There a list of things a tenant is supposed to do or undertakes to
do. This also applies to the landlord.

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When these covenants are written in the lease, they are expressed terms. There are
times when these covenants are not expressed. You must know what terms are implied.
This helps you to advise your client in circumstances where the covenants are not
expressed.

There are terms which are implied by law and are expressed; and there are those
implied by law even though not expressed.

Usual covenants – these covenants are always present, whether expressed or implied. In
other words, these usual covenants will be inserted in the lease since, even if there is no
express agreement to that effect, such agreement is implied, unless expressly excluded.

Implied covenants operate as usual covenants. They take effect whether implied or
expressed. However, they cannot be easily excluded, except with the agreement of the
parties.

Express covenants may be expressed, and the implied terms may be expressed.

EXPRESS COVENANTS

TENANT

- to pay rent
- to pay rates and taxes
- to repair the premises
- not to sublet
- allow landlord to enter and view
- to insure
- against trade
- not to repudiate owner’s title
- not to alter the premises
- to hold premises in tenantable manner
- to give up possession at effluxion of time

LANDLORD

- to give tenant quiet enjoyment

- not to derogate the tenant’s lease
- premises must be fit for habitation
- to repair

27
 - to insure
- pay taxes and rates
- right of re-entry.

The covenants which if not expressed are always implied

TENANT

- to pay rent
- not to repudiate landlord’s title
- allow landlord to enter and repair
- pay utility charges

LANDLORD

- tenant must have quiet enjoyment

- re-entry for non-payment of rent or breach of covenant
- premises must be fit for habitation
- non derogation of grant
- to pay taxes and rates.

THE DRAFTING PROCESS

The process of drafting legislation begins with the receipt of drafting instructions and
end with completion on an agreed draft. It is a process whereby an idea or concept
concerning the social framework of society becomes government policy, and is
transformed to legislative shape.

In Sierra Leone, the process of legislative drafting is governed by Government Notice No.
444 – Administrative Instructions on the Preparation and Introduction of Legislation.

(This will be elaborated on later)

When a proposal is accepted as legislative policy and communicated as drafting

instructions, thus begins the work of the draftsman.

There are five stages of the drafting process.

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1. UNDERSTANDING

The first task for the draftsman is to understand what he is about. It is covering the gap
between the sponsor and draftsman. This includes understanding the main purpose of
the legislation, i.e., the problem the legislation intends to remedy and how it will be
solved. It is not literal understanding, but it is been able to appreciate, empathize and
internalize the problem. To start on the wrong footing, the problem would be hardly
solved. The key to understanding the instructions is to know what the problem is and
how it is be solved.

In practice it has been recognized to ask oneself these questions: how will be law be
enforced? What is the purpose/rational of the legislation? What do you want to achieve
at the end of the day? What is the background for the legislation? What are the legal
implications, the need for the law? This constitutes understanding.

DRAFTING INSTRUCTIONS

The drafting of law is an essay in communication which is successful only if the law is
communicated in such form as to be readily comprehensible. The preparation of
drafting instructions is also an essay in communication. Drafting instructions provide the
basis on which the legislation is to be developed.

Drafting instructions comprises a comprehensive understanding of technicalities of

proposals for legislation. It includes:

- technical details including terms

- fully understanding what legislation is intended to achieve
- to ascertain the method by which the objective to be achieved are to be
employed
- the implications/difficulties of the problem
- how it may affect existing law.

When these have been communicated, it must put the draftsman in position to do what
he is told to do.

2. ANALYSIS

Legislative proposal should be subjected to careful analysis in relation to:

- existing law

29
 - potential danger areas which bear special responsibilities
- practicability.

A. EXISTING LAW

Every new additional law is to be regarded as amending in nature, especially if the

common law and written law in force is regarded as a coherent whole. In this regard,
the relevant written law, common law and case law must be studied. Laws in pari
material must also be studied.

B. POTENTIAL AREAS OF CONFLICT

The draftsman has a responsibility to see the legislative proposal in a wider and more
balanced context. The responsibility is great in certain areas of potential danger. These
include proposals affecting personal rights; proposals affecting private property rights,
proposals for retrospective legislation, etc.

C. PRACTICABILITY

A draftsman needs at this early stage to address his mind most rigoursly to the practical
aspects of the legislation proposed and be satisfied that the scheme will work, that the
machinery proposed is practicable and that the legislation will be capable of
enforcement.

3. DESIGN

The preliminary design of a statute must take into account three important factors.
First, it is necessary to adhere conventional practice in the jurisdiction. Secondly, the
draftsman must be careful that where the policy is controversial, he must recognize
political realities and be prepared to compromise over the arrangement of the material.

The draftsman must also keep in mind the design which fits legislation not directly
amending in character and legislation amending legislation.

4. COMPOSITION

This process of composition requires a considerable degree of mental discipline. The

completion of the first draft marks only the beginning. The draft is to be discussed with
its sponsors, and a succession of revised drafts is necessary. At this stage, the draftsman

30
must be willing to invite criticism of his draft and if necessary discipline himself to accept
it graciously.

It is to be noted that at this stage, the emphasis is on essential matters of substance

rather than form and the draftsman has foremost in his mind the need to give effect
accurately to his drafting instructions.

A number of materials will be of help to the draftsman:

1. The use of precedents

In the first place, the judicious use of a precedent can save a lot of time. Secondly, a
precedent may constitute a source of ideas, in addition to constituting a help in the
actual drafting. Thirdly, the use of precedents from the same jurisdiction may contribute
to consistency of approach to statute law becoming a coherent body.

2. Referential legislation

This is the process whereby two laws are bound together or the provisions of one are
incorporated in the other.

The first technique is the direct amendment of a principal law by another law which
refers to it.

The second of these techniques consists of legislating to adopt or incorporate in a

statute provisions of an existing statute not be re-enacting those provisions but by
referring to them.

5. SCRUTINY

The draftsman must discipline himself to take a critical gaze at his finished product. First,
he should read it and consider it as a whole – does it form a coherent whole and does
the material flow in logical sequence? Then he must get to the tedious matters of detail
and check cross references, all other references, the use of definitions, consistency of
language, spelling and punctuation.

Finally, a draftsman colleague, who comes fresh to the exercise, should be inveigled to
scrutinize the draft.

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DRAFTING OF CABINET MEMORANDUM

The procedure or machinery for the adoption of ideas as government legislative policy is
set out in Government Notice 444 produced by the Government of Sierra Leone.

In summary, this procedure will usually involve the acceptance of the policy by the
Minister responsible for the proposal as a cabinet memorandum/submission. This
memorandum is submitted to cabinet for approval in principle. The approval of cabinet
comes as a cabinet conclusion. This forms part of the drafting instructions.

The drafting of the cabinet memorandum is usually done by the sponsoring ministry.
The sponsoring ministry drafting the memorandum depends on the subject matter. For
example, if it concerns the regulation of mineral resources, the sponsoring ministry will
be the ministry of mines. It should be noted that not every legislative proposal is clear
cut and relates only to one ministry. It means that two or more ministries will be
concerned with the outcome of a legislative proposal.

It is also important to note that consultation with interested parties is relevant. No

cabinet memorandum will be successful if all the interested parties have not been
consulted. It therefore serves a good means by notifying other ministries of the
proposed legislation.

In this light, the cabinet memorandum will reflect the policy of government.

Besides the formalities, e.g. number and headings; the cabinet memorandum is divided
into sections or paragraphs. Each of these is very important. They indicate what
background work has been done and how well thought out the policy has been. You
cannot have a law out of whims. It is a well thought out idea that is transformed into
policy and make it into reason and concrete form.

1. Title/Number

2. Purpose

3. Background of the circumstances, the prevailing social situation

- state factual details

- state (if possible) lacuna in an already existing law
4. Issues for consideration

32
 - specific issues for cabinet to consider
- factors to be drawn to their attention
- the issues should be what the law is about, e.g. to prohibit street trading; impose
sanctions; supervisory role of police/wardens.

5. Show evidence of how much you have consulted with other stakeholders

- Inter departmental consultation

- Inter ministerial consultation
- Consultation with Non Governmental Organizations
- Other stakeholders

6. Financial and Employment considerations

7. Legislation

8. Recommendations

- Conclusions you want cabinet to reach

CONVEYANCE

A. THE CONDUCT OF CONVEYANCING TRANSACTIONS

A conveyance is a contract for the sale of land or interest in land. Unlike simple
contracts, conveyancing transaction must be done by deed. It may be regarded as the
application of the law of real property in practice. The normal parties are the vendor
and the purchaser.

A purchaser of land has right to put written requisitions and objections to the vendor s
to any defect in the title as appears on the abstract or disclosed by an examination of
the deeds. The vendor must in turn give satisfactory answer to each requisition in order
to establish a good root of title. However, this will depend on the character or type of
the vendor’s title. The vendor’s only obligation is to show that he can convey or compel
others to convey the estate he has agreed to sell to the purchaser.

In order to establish good root of title the purchaser must ascertain:

a. that an unbroken title has been traced from the instrument to the vendor, and;

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 b. whether the parties to the various instruments abstracted had power to convey
in the capacity in which they have contracted to sell. Greenwood v. Whitehead;
Elliot v. Pierson.

In tracing the instrument to the vendor the purchaser may require proof of documents
and events abstracted; examine abstracted documents for any defect in form, stamping,
disclosure of equities, breaches of trust, mortgages or charges.

GOOD ROOT OF TITLE

The abstract of title must commence with a good root of title. This is usually evidenced
by the following instruments depending on the title of the vendor or the nature of the
transaction;

a. a conveyance of sale
b. a legal mortgage
c. a specific demise by a testator
d. an assent by personal representatives
e. a voluntary conveyance

An instrument as evidence of good root of title must;

i. deal with the whole legal and equitable estate in the property
ii. contain nothing that appears to cast any doubt in the title;
iii. describe the property

If the instrument is deficient in any of these particulars, the purchaser is entitled to

rquest further evidence.

An abstract of title must contain, besides the document forming the root of title,

- every subsequent document and statement of every event, eg, births, marriages,
or death which forms a link in the vendor’s title.
- Legal mortgages, even though the money has been repaid and the conveyance or
receipt endorsed showing the discharge of the mortgage.

In an abstract of title,

Births, marriages and deaths are proved by birth, marriage and death certificates
respectively of members of the dissociate family, entries in the family bible or by
statutory declaration.

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Intestacy is proved by the production of Letters of Administration

A deed executed under a power of attorney should be proved by the production of

power of attorney and proof that the power was not revoked by the donor’s death or
otherwise before the power was executed.

A will should be proved by the production of probate or letters of administration with

will annexed, or office copies thereof, or if the will has not been proved, by the will
itself.

A disentailing deed should be proved by a certificate of enrolment.

NOTE:

Statutory provision takes precedence over common law.

Check authority for number of years required for good root of tile for:

a. private land
b. state land

PARTS OF A CONVEYANCE

1. DATE AND PARTIES

This indicates the identity and name of the parties to the conveyance. It shows the
interests the person who is conveying holds, and also the capacity in which the person is
receiving. The names should be properly cited and given as much detail as possible. For
example, to include the person’s occupation in the conveyance. This is to restrict the
persons who may claim to be entitled to the contract.

The commencement describes the general nature of the document, e.g, ‘This
conveyance’. The old practice was for the initial words to ‘This Indenture’.

Whatever date is in fact inserted in the conveyance, the document takes effect from the
date upon which it was signed, sealed and delivered by the parties to it. A deed which
has been signed and sealed but not delivered is ineffective.

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2. RECITALS

These are two types:

a. Narrative recitals, which deal with matters such as how the vendor became
entitled to the land.
b. Introductory recitals, which explain how and why the existing state of affairs is to
be altered, eg, that the parties have agreed for the sale of the property.

3. TESTATUM

This is the beginning of the operative part of the transaction and is paramount to be
stated in the document.

Consideration is stated to show that the transaction is not a voluntary one.

Receipt clause set out in the body of the conveyance is sufficient evidence of payment
and absolves a subsequent purchaser from further inquiry. It is sufficient discharge to
the person paying the same. A subsequent purchaser is interested as to whether the
consideration was valuable or it was a voluntary conveyance.

Operative words – “The vendor as beneficial owner hereby grants and conveys unto the
purchaser”. This shows that title has passed and the capacity in which the vendor passes
title. It has the value of the legality of the transaction. The capacity in which the title is
being passed must be ascertained. Title is usually passed as beneficial owner, settler,
trustee, mortgagor, etc. It is important to know the legal significance of any interest
held in the land.

An executed conveyance is a document showing title. There are implied covenants. If

there is a defect, there is remedy for the purchaser to take action against the vendor.
That is, when he sells in his capacity – certain undertakings must be properly dealt with.
The implied covenants of vendor are that he has capacity to pass tile and it is free from
incumbrances.

The settler has the implied covenant for further assurances, binding that person and
those claiming under him.

A transaction by a trustee, mortgagee, personal representative, receiver, or under an

order of the court has the implied covenant the grantor himself has not encumbered
the land.

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The benefit of the covenants run with the land, so that each person in whom the land is
for the time being vested is entitled to enforce the covenant. And the burden of the
covenant shows that the person liable is the person entering into the covenant and
binds himself to its provisions.

4. PARCELS CLAUSE

This is a description of the property conveyed. The clause must clearly give the
description based on its presence appearance. It should leave no doubt about its
boundary, describes the property. It may be connected with an earlier description in
earlier deeds. What is described is what is intended to be conveyed, except bounded by
reservations or exceptions.

5. EXCEPTION

An exception refers to a right or something in existence at the time of the grant. It must
not destroy the grant, nor undermine it.

6. RESERVATIONS

It is something new inserted into the conveyance, a right for the vendor. A reservation
in a conveyance is effective for a future use, e.g. as to use of the land or other factors.
They are not implied, must be stated.

Reservations or exceptions can be found as part of the parcels clause.

7. HABENDUM

“To hold unto the purchaser in fee simple”. Its purpose is to define the estate, i.e., the
amount of interest taken by the estate. Estate or interest in the property is described in
the habemdum, e.g., claim to title or interest.

In practice, it is normal to insert the kind of estate granted, eg, fe simple, etc. where
appropriate.

The words of the habendum are technical and have judicial meaning. If the conveyance
is subject to incumbrances, such as a mortgage, it must be stated as well. For if the
encumbrances are enforced against the purchaser, he may sue the vendor. This accords
with the provisions of the implied covenants to which the vendor is bound. Any

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encumbrance on the estate must be stated and any limitation to claim of interest must
be clearly stated.

Any conveyance without limitation will pass the estate as such. For eg, if you say, ‘in fee
simple’, the estate passes as such. In any limitations, it must be stated, or there will be
breach of the implied covenants.

8. ATTESTATION CLAUSE

This states the attestation of the vendor with his signature and seal. It records the day
and year already shown in the date and commencement of the conveyance. The
presence of a witness is required to testify to the authenticity and good faith of the
vendor.

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 INTRODUCTION

Statutory interpretation is meaningful and hugely significant to be examined as legal students

as it will stand as a guide against complexity and able to enhance direction as to how statutes
are interpreted in respect of what parliament intended in their use of language in an Act. This
interpretation is unique to Common Law jurisdictions as legislature creates the law and the
courts merely apply the law which, of course means that the will of parliament must be
identified. In recent years tension between the executive and the judiciary has become
increasingly fraught, particularly in criminal law cases .Therefore, the court is put to test to
decide what a particular word or phrase means. Below are the necessary rules of statutory
interpretation and its aids or guide in respect of how they are interpreted.

THE LITERAL RULE – It has been held by many, that the best way to interpret the intention of
parliament is to give the wordings of parliament their ordinary or natural meanings. This is
known as the plain, grammatical or literal rule. According to this rule, the ordinary meaning
supersedes even if it brings unreasonable results from their interpretation. In the words of Lord
Esher in the case of R V. City Of London Court Judge, he stated thus:

“If the words of an Act are clear, you must follow them, even though they lead to
manifest absurdity, the court has nothing to do with the question of whether the
legislature has omitted the absurdity.”

The ambiguity of this rule however, comes in effect when grammar is into play; as grammar
rules changed over time. A classical example could be identified in the following two sentences:

1. Kill him, not save him (negative);

2. Kill him not, save him (positive).

The following cases below illustrate how judges have succumbed to the literal rule:

In R V. Bell [1961] the court in a bid to interpret the ordinary meaning of the words it was held
that before a contract comes into existence there must be an offer. In the present case the
defendant displayed a ‘flick knife’ in his shop window which is contrary to the Offensive
Weapons Act 1959 which prohibits the sale of flick knives. The court held that the defendant is
not guilty because the display of the Flick Knife constitutes no offer but an invitation for people
to make offers.

In the case of London And North Eastern Railway Co. Beriman [1964], according to the
relevant statute it provided that an employee’s spouse will only claim damage if his spouse is
killed when “relaying and repairing” tracks. The widow of a trial worker whose work was to do

39
maintenance and oiling sought to claim damages. The trial judge held that the employee did
not fall within the required range of persons entitled for damages by their spouse.

In Whittley V. Chappell [1868] a statute which tends to curtail electoral malpractices makes it
an offence for anyone who claims to impersonate “any person entitled to vote”. The court
therefore held that since a dead person is not eligible to vote he cannot be impersonated.

ADVANTAGES OF THE LITERAL RULE

One of the cardinal advantages for this rule is that it confirms the sovereignty of parliament and
restricts judges from violating their institutional mandate which is to apply the intention of
parliament and not to be legislatures of laws etc.

DISADVANTAGES OF THE LITERAL RULE

A statute that leads to unreasonable results and which subsequently leads to manifest injustice
will not be regarded as reflecting the intention of parliament, because it is unthinkable to say
that parliament intends an unjust result. An obvious example is London And Northeastern
Railway Co. Supra.

HLA Hart [1994] stated that all words have core meanings which are clear and plain but there
are certain words which also have penumbral range which are uncertain. Therefore the literal
rule will be useless if it fails to consider the peripheral meaning of the words which parliament
might not include in the text of the statute.

THE GOLDEN RULE – As a result of the lacuna which exists in the aforementioned rule of
statutory interpretation, the ‘golden rule’ was created to fill in that gap; where the literal rule
leads to absurdity, repugnance or inconsistency. The rule existed in situations where the literal
rule gives a result parliament could not have intended as a result of poor drafting or unforeseen
situations.

The golden rule has a narrow as well as a wider application. The former application is where a
word is capable of more than one meaning, the court choose the most sensible meaning. The
latter application on the other hand is where words lead to a repugnant situation; modify the
words to avoid the repugnant meaning. According to Lord Wensleydale in the case of Grey V.
Pearson (1857)

“The grammatical and ordinary sense of the word is to be adhered to, unless that
would lead to some absurdity, or some repugnance or inconsistency with the rest
of the instrument, in which case the grammatical and ordinary sense of the word
may be modified sop as to avoid the absurdity and inconsistency, but no further.”

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In corroboration to that statement, the House of Lords in the case of Inco Europe Ltd. V.
First Choice Distribution (2000) added that words could be added to a statute by a judge
to give effect to parliament’s intention where an obvious error had been made in drafting
the same.

The following cases below illustrate how judges have succumbed to the golden rule:

Section 57 of the Offences against the Persons Act 1861 stated that “Whosoever being married,
shall marry any other person during the life of the former husband or wife...shall be guilty of
bigamy. In the case of R V. Allen (1872), it was pointed out that it is impossible for a person
already married to ‘marry someone else – they might go through a marriage ceremony, but
would not actually be married, using the literal meaning would make the statute useless. The
court therefore held that ‘shall marry’ should be interpreted to mean ‘shall go through
marriage ceremony.’

Under the Road Traffic Act of 1960, it was an offence to drive at more than 30 MPH (Miles Per
Hour) in a vehicle ‘adapted to carry more than seven passengers. In the case of Maddox V.
Storer (1963) the defendant drove a minibus made to carry eleven passengers. The court held
that ‘adapted to’ could be taken to mean ‘suitable for.’

In Alder V. George (1964) the defendant was charged under Section 3 of the Official Secrets Act
1920 with obstructing a member of the armed forces ‘in the vicinity of’ meant near to, whereas
the obstruction had actually occurred in the prohibited place itself, an air force station. The
court held that while in many circumstances ‘in the vicinity’ could indeed only be interpreted as
meaning ‘near to’, in this context it was reasonable to construe it as including being within the
prohibited place.

ADVANTAGES OF THE GOLDEN RULE

This rule prevents the unreasonable and injustices caused by the literal rule, and aid the court
into putting into practice the real meaning of parliamentary statutes.

DISADVANTAGE OF THE GOLDEN RULE

Disadvantageously, this rule provides no clear meaning of an ‘absurd result’ as noted by the
Law Commission in 1969. It rather turns out to be less explicit form of the mischief rule which is
explained below.

THE MISCHIEF RULE – This rule gives judges more discretion than the other two rules. The
definition of the rule comes from Heydon’s Case [1584] Co Rep 7a, where it was said that there
were four points the court should consider. These, in the original language of that old case,
were:

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1st what was the common law before the making of the Act?

2nd what was the mischief and defect for which the common law did not provide?

3rd what remedy the parliament hath resolved and appointed to cure the disease of the
common wealth?

4th the true reason for the remedy; and then the office of all judges is always to make such
construction as shall suppress the mischief, and advance the remedy?

So under this rule the court should look to see what the law was before the Act was passed i
order to discover what gap or mischief the Act was i tended to cover. Then the court should
interpret the Act in such a way that the gap is covered. This is clearly a quite different approach
to the literal rule.

An example of a case in which the mischief rule was used is Smith V. Hughes [1960] 2 All ER
859. In this case the court had to interpret Section 1 (1) of the Street Offences Act 1959 which
said “t shall be an offence for a common prostitute to loiter or solicit i a street or public place
for the purpose of prostitution”. In this case six women had been convicted under the Section
Act aforementioned. They argued on appeal that they were not on a street or public place as
required by the Act for them to be guilty. One woman had been on a balcony and the other had
been at the windows of ground floor rooms, with the window either half opened or closed. In
each case the women were attracting the attention of men by calling to them or tapping on the
window. The court decided that they were guilty.

In this case the court did not use the plain, ordinary grammatical meaning of the words “In a
street or public place. Instead the judge looked to see what mischief the Act was aimed at.

ADVANTAGES OF THE MISCHIEF RULE

This rule helps judges to avoid unreasonable and absurd interpretation of the Act or statute.
Therefore, it promotes fair, just and equitable outcome between the parties. It also gives
flexibility for the judges to interpret the Act in question.

DISADVANTAGE OF THE MISCHIEF RULE

In a bit to cure the mischief which parliament intended, judges may go beyond the intention of
parliament. This rule will also enable judges to create laws i flagrant of their institutional
mandates of interpreting the law.

PURPOSIVEAPPROACH – This goes beyond the mischief rule in that the court is not just looking
to see what the gap was in the old law; the judges are deciding what they believe parliament
meant to achieve. The champion of this approach in English law was Lord Denning. His attitude

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towards statutory interpretation is shown when he said in the case of Magor and St. Mellons V.
Newport Corporation [1950] 2 All ER 1226:

“We seat here to find out the intention of parliament and carry it out, and we do
this better by filling in the gaps and making sense of the enactment than by
opening it up to destructive analysis”.

RULES OF LANGUAGE

The literal rule does not take words in their complete isolation. If words or phrases in a statute
are in conflict with one another in the same statute, to court normally resolves the dispute by
looking at what those words and phrases mean by looking at the whole provision of the Act.
The court have developed minor rules which can help to make the meaning of words or phrases
clear where a particular sentence construction has been used. These minor rules are as follows:

1. Egusdem generis rule;

2. Expressio unios est exclusion ulterius; and
3. Noscitur a sociis.

1. The Egusdem generis rule – This rule states that where there is a list of words which is
followed by general words, then the general words are limited to the same kind of items as the
specific word. This is illustrated i the case of Hobbs V. CG Robertson Ltd. [1970] 2 All ER 347. A
workman had injured his eye when brickwork which he was removing splintered. He claimed
compensation under the Construction (General Provision) Regulation 1961. This regulation
made it a duty for employers to provide goggles for workmen when “breaking, cutting, or
carving stone, concrete, slag or similar material”. The court held that brick did not come within
the term “a similar material”. A brick is not ejusdem generis with stone, concrete, slag. The
reason is that all the other materials were hard, so that bits will fly off them when struck with a
tool, whereas bricks were a soft material. The ruling meant that the workman’s claim failed.

Another case illustrating the use of ejusdem generis rule is Wood V. Commissioner of Police of
the Metropolice [1986] 2 All ER 570. The Divisional Court held that Section 4 of the Vacancy Act
1824 the words “any gun, pistol, cutlass, bludgeon and other offensive weapons” had to be
interpreted in light of the list of the items and all these were items made or adopted for the
purpose of causing injury. A piece of glass had not been made for that purpose.

There must be at least to specific words in a list before the general word or phrase for this rule
to operate. In Allen v. Emmerson [1944] KB 362. The divisional court had to interpret the
phrase “theatres and other places of amusement” and decided if it applied to a funfair. As there
was only one specific word “theatres” it was decided that a fairfun did come under the general
term “other places of amusement” even though it was not of the same kind as theatre.

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2. Espressio unius est exclusio alterius (the expression mention of one thing excludes the other) –
Where there is a list of words which is not followed by general words, then the Act applies only
to the items in the list. In Tempest V. Kilner [1846] 3 CB 249, the court had to consider whether
the Statute of Frauds 1677, which requires the contract for the sale of ‘goods, ware and
merchandise’ of more than £ 10 to be evidenced in writing, applies to a contract for the sale of
stock and shares. The list “good, ware, and merchandise” was not followed by any general
words, so the court held that only contract for those three types of things were affected by the
statute; because stocks and shares were not mentioned , they were not caught by the statute.

3. Noscitur a sociis (a word is known by the company it keeps) – This means that the words must
be looked at in context and interpreted accordingly. It involves looking at other words in the
same Section i the Act. Words in the same Section are important in Inland Revenue
Commissioners V. Frere [1965] AC 402, where the Section set out rules for an interest,
annuities or other annual interest: The first use of the word ‘interest’ o its own could have
meant any interest paid, whether daily, monthly or annually because the words ‘other annual
interest’ in the Section, the court decided that ‘interest’ only meant annual interest.

AIDS TO INTERPRETATION

INTRISIC OR INTERNAL AID – these are matters within the statute itself that may help to make
its meaning clear. The court may consider areas such as:

1.) Short Title of the Statute – The short title of an Act is not of much use for interpretation
purposes as it does not enact anything but merely descriptive.

2.) Long Title of the Statute – This is part of the Act and may be looked at in cases of ambiguity.
This provides the plainest of all guides to the general objectives of all statues’ per Lord Simon in
the case of Black-Clawson International Limited V. Papierwerke Etc. Ag [1975] A.C. 591, Hl

3.) Preamble of the Statute – The use of the preamble was considered in the case of Attorney-
General V. Ernest Augustus of Hanover [1957] A.C. 436 by Lord Normand that:

“When there is a preamble it is generally in its recitals that the mischief to be

remedied and the scope of the Act are described. It is therefore clearly permissible
to have recourse to it as an aid to constructing the enacting provisions...”

4.) Punctuation – Formally, punctuation was not considered as part of the statute, but recently
they may be used as an aid to interpreting the statute where there is an ambiguous provision;
DPP V. Schildkamp [1971] A.C. 1, HL per Lord Reid at p. 10

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5.) Headings – In some statutes, heading are given to particular Sections or parts. Strictly
speaking, headings are probably not part of the Act, although they may be used as an aid to
construction in cases of ambiguity; DPP V. Schildkamp [1971] supra

6.) Marginal or Side-Notes – Lord Reid noted in the aforementioned case that there is no
reasonable reason why side-notes should be ignored. They may be a useful indicator to the
general purpose of a section and the mischief at which it is aimed. In the case of DPP V.
Johnson [1995] 4 All ER 53, DC; a marginal note was used to confirm the mischief intended to
be remedied by the breathalyser law.

7.) Schedules – Schedules are placed at the end of any Act to prevent the main body of the
statute from becoming complex. They consist of transitional provisions, minor and
consequential amendments, forms, and a list of enactments repealed.

8.) Examples – Statutes occasionally gives examples to illustrate the working of the Actor the
use of the new terminology created by it. Whether such examples are in Sections or schedules,
they are part of the statute. A classic precedent is the Law of Property Act 1925 (Schedule 3, 4,
and 5) and the Settled Land Act 1925 (Schedule 1) which provides examples of specimen forms
and instruments which may be used to satisfy the terms of the Acts.

EXTRINSIC OR EXTERNAL AID – these are matters outside the statute itself that may help to
make its meaning clear. The mischief rule directs the judge to external aids including the
following:

1.) Historical setting – A judge may consider the historical setting of the provision that is being
interpreted, as well as other statutes dealing with same subject.

2.) Dictionaries and Textbooks – These may be consulted to find the meaning of a word, or to
gather information about the views of a legal academics on a point of law.

3.) Reports – Legislations may be preceded by law commission or some advisory committee.
The House of Lords stated in Black-Clawson International Limited [1975] that official reports
may be considered as evidence of the pre-existing state of the law and mischief that the
legislation was intended to deal with.

4.) Treaties – Treaties and international conventions can be considered when following the
presumption that parliament does not legislate in such a way that the United Kingdom would
be in breach of its international obligations.

5.) Previous Practice – General practices and commercial usage in the field covered by the
legislation may shed light on the meaning of a statutory term.

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