legal procedure in the commencement of probate actions in both testate and intestate succession

         Abstract

Succession is concerned with the devolution of property to a living person upon the death of its owner. Death inevitably brings emotional distress to those related to the deceased; it becomes much more problematic for his surviving relatives if he was their Breadwinner.

In Cameroon, a considerable part of court issues concerns succession and it goes further to be the reason behind several social problems; succession can be of two types namely Testate and intestate succession. The former is the situation where the diseases left a valid will and the latter implies no will was left by the deceased or the Will left failed to be admitted to probate. Intestacy is very recurrent in our traditional society because of the high literacy rate which makes it challenging for common people to make a will.

This research study sought to explain the procedures in the commencement of probate action under testate and intestate succession. The method used in this research is the qualitative research method which is appropriate in law. This research is divided into five chapters.

Chapter one introduces the key concepts of the study and discusses the objectives; chapter two presents the Cameroonian legal system, and the laws relating to Testate and Intestate succession in Cameroon. Chapter three looks at the differences between Testate and Intestate succession.

Chapter four establishes the procedure in the commencement of probate action under Testate and Intestate succession; chapter five presents the conclusion and recommendation. It is recommended that the rules governing intestate succession should be harmonized.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to the study

There are basically twin regimes in the event of death, there is probate or administration with will annexed and administration without will. While the former is called Testate succession the latter is called Intestate succession, both types of administration have different forms of commencement, probate is required when an estate’s assets are solely in the deceased name.

In most cases, if the deceased owned property that had no other name attached to the estate it must go through to transfer the property to any of the beneficiaries. Probate is equally required for all estates where assets are above a certain value and are not been automatically transferred to a surviving joint owner.

These people must apply for a grant of probate if necessary; the estate will eventually be distributed to the beneficiaries named in the will. The grant of probate is a condition precedent to the administration of the deceased person’s estate.

Probate is the judicial process whereby a will is provided in the court of law and accepted as a valid public document that is the true last testament of the deceased. The grant of probate is the first step in the legal process of administering the estate of a deceased person’s property under a will.

A probate court decides the legal validity of a testator’s will and grants its approval also known as granting probate to the executor, the probate will then become a legal instrument and may be enforced by the executor in the law court if necessary.

A probate also officially appoints the executor as having legal power to dispose of the testator’s assets in the specified in the testator’s will. However, through a probate process a will may be contested, thus in preparing will solicitors are enjoined to exercise care and diligence. If probate is not filed, it will not be possible to legally transfer the title of anyone’s asset that exists in the deceased name.

Succession affects everyone as all property must pass to someone else on death. In the absence of a legal will the estate is settled according to the laws of intestacy in the state of residence or real property of the deceased at the time of death.

1.2 Statement of the problem

Succession on death, the subject matter of this study signifies the devolution of property to a living person upon the death of its owner. The law of succession could be criticized for rendering possible the acquisition of wealth by persons who did not work for and for constituting a principal source of economic inequality in the society.

We think, however, that if the law of succession is evil then it is a necessary evil. It enables the continuity of the estate and most importantly provides the only opportunity for the reallocation and continuation of the obligations of the deceased towards persons for whose maintenance he was responsible in his lifetime.

If the rules are a reflection of the deceased’s intention, then nothing would have been dearer to him than to have his name perpetuated and his family well provided for.

It is not uncommon that upon the deceased death members of his or her family go on the rampage to grab the property or dispossess persons considered not to be entitled to succession, of any lands occupied by them. Where the deceased was married this is against his widow and his issue and generally any attempts to resist results in violence being perpetrated against them.

In a good number of cases, female relatives of the deceased receive similar treatment from their male counterparts who believe that women should be in their husbands’ homes and not be around upon their father’s death to lay claims to the property.

The law of succession creates a substantial class of destitute persons condemned to a life of poverty and want. Poverty means a person does not have the resources to sustain himself and those dependent on him. This is exactly what the law of succession does since by excluding certain persons from succession, they are made to depend on others and in this case the male successor.

Generally, the successor ignores his responsibilities and concentrate on his direct family and those family members who agree to be subservient and recognize his authority, and for widows, this might mean accepting to become the wife of the successor.

The weaknesses of the law of succession inhibit harmony in the family. Rather than a divisive factor, the law of succession should be promoting family stability by balancing the conflicting interest of its members, for where the family is stable as the smallest unit of the community would be stable at large.

As a check to all of these, the law, we submit ought to ensure the continuity of the obligation of maintenance which the deceased had towards his nuclear family without distinction of gender; to ensure the maintenance of the vulnerable members of the immediate family notably the parents of the deceased and in default the members of the extended family among whom the grandparents and their descendants; to lay down clear rules of distribution.

1.3 Research questions

The following questions shall serve as a guide in this research

• What are the Laws applicable to testate and intestate succession under common law and Civil law in Cameroon?
• What are the differences between testate and intestate succession?
• What are the respective procedures for the commencement of probate actions in both testate and intestate succession under Common law and Civil law in Cameroon?
• What policy recommendations can be made?

1.4.1 Objectives of the study

1.4.1 General objectives

The general objective is to determine the procedure in the commencement of probate proceedings in both testate and intestate succession

1.4.2 Specific objectives

• To examine the laws applicable to testate and intestate succession in Cameroon
• To elucidate on the differences between testate and intestate succession
• To determine the procedure in the commencement of probate proceedings in both testate and intestate succession.
• To examine the advantages and disadvantages of probate actions and policy recommendations

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