succession law and practice in the Cameroonian legal system

Abstract

This entire work focuses on the laws that regulate succession in Cameroon. This research goes ahead to regulate succession both at the two systems of laws that exist in Cameroon.

This work further goes ahead to view the various applicable laws on succession. In view of the conflict of laws, the legislator has however tried in several attempts to adopt foreign laws which are in compliance with the Native Laws and Customs (section 27 of the Southern Cameroon High Court Laws).

The view of the succession in the customary law was very lagging and in improving these rules foreign laws have gained priority over these customary rules.

The work further goes ahead to examine Intestate succession both at the Matrilineal and the Patrilineal societies.

The matrilineal system of succession is very scarce in Cameroon. The existence of some case laws has improved the court’s knowledge and awareness of granting rights over properties and wills.          

 CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND TO THE STUDY

Succession is the devolution or transmission of property to a living person upon the death of its owner.

The law of succession on death is the law governing the transmission of property on death which property is vested on the deceased to some other person or persons.

The transmission is in two stages namely, a passing by operation of law to one or more representatives of the deceased person for the purpose of administration and then transference usually by the act of the representatives, to the persons entitled to the beneficial enjoyment of the property.

The transmission and distribution of property to the beneficiary by the Executors of the Will is done by preparing a document called an Assent. Assent is a document that transfers ownership of a property under a will from the decease through the executors /representatives to the respective beneficiaries in terms of the will and in accordance with the directives or wishes of the testator at death.

There is no inheritance period of administration, since pursuant to article 718 of the civil code succession opens immediately upon the death of the de cujus and property vests directly in the universal heirs jointly. 

There are two forms of succession, testate succession and intestate succession.

Testate succession is when a person dies living behind a valid “will” on how his estate will be administered, and the person’s estate must be administered as directed in intentions of the person making it, the matters which he wishes to take effect on or after his death.

For a will to be valid, there are certain conditions that must be fulfilled. A will is only valid if it is made in the proper form by a person of sufficient age and certain things are established about the mind of the testator at the time the will was made. As regards the mind of the testator, it must be established that a) they had a testamentary capacity.

Every adult a Christian, Muslim or otherwise with a sound mind can make a will.

Generally, minors cannot make a will unless a “privilege will”. Apart from the age restriction, a testator must have a testamentary capacity to make a will that is to say the testator must be mentally capable of making a will. The test of the mental capacity of a person to make a will is a sound mind, a sound memory and sound understanding.

1. b) they had the knowledge of and approved of the content of the will, the person making the will must have an understanding of the implications of making a will, that is he must understand that he is disposing of his property and everything contained in the will must be made according to his instruction and with his concern, failing which will render the will void. C) The making of the will was not induced by force, fear, or undue influence.The will must be made by the testator out of free will without any external influence; the testator must be under any pressure or influence. Regarding the formal requirement for the creation of a will section, 9 of the wills act 1837 governs the requirement of formal validity of a will. Section 9(1) of the act provides that no will shall be valid unless; it is in writing, and signed by the testator or some other person in his presence and by his directives and it appears that the testator intended by his signature to give effect to the will and the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and each witness either must attest and sign the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of either witness) but no form of attestation shall be necessary.

However, though a will is expected to be in writing there are some exceptions like the privilege will and also wills made under customary law. An appointment of an executor under a will is more convenient than relying on the court to appoint administrators, as the executors derive their authority from the will and can therefore begin to administer the estate from the date of the deceased’s death. The grant of probate merely confirms their authority.

Intestate succession on the other hand is a situation where a person dies without a valid will on how his estate will be administered.

Cameroon being a Bijurial state that is it has two systems of law, the English common law practised in Anglophone Cameroon and the civil law mostly practised in French Cameroon, The law governing succession law in Anglophone Cameroon is the primary statutes still enforce in England in connection with the formal validity of wills are wills act 1837, Amendment act 1852 that is statutes of general application which were enforced in England at the appropriate date as well as under “the probate and matrimonial causes sections of the high court law in particular section 15” the law which governs succession in Anglophone Cameroon is the law still enforceable in England.

The French laws received in Francophone Cameroon are French-derived and French laws. By French laws imported directly from France and by French-derived laws is meant laws made by French colonial administrators for former French Cameroon and those brought in from other French possessions.    Order 48 of the Supreme Court civil procedure rule cap 211 punishes anyone who interferes in the estate of the deceased.

Succession law plays a very vital role in our society today, though it renders property to those who did not work for, succession law must not be left out especially in our contemporary society this is a result of the fact that people acquire a lot of wealth for themselves and will want such wealth to be properly managed and a continuation of their legacy when they are no more, death being something which is inevitable that cannot be stopped or must come a day, so succession becomes a necessity especially when it comes to making will, this is because making a will, will provide an opportunity for the testator to choose persons he desires to manage his estates when he is no more.

However, although the distribution of property is the primary objective behind making a will, there are other objectives behind making a will like; a will can also be seen as a means of expressing generosity, that is a will, will provide an opportunity for a testator to benefit persons who are not members of his family.

Succession law has greatly reduced the rate of conflict on inheritance in Africa and Cameroon in particular, this is because the estate owner during his lifetime is provided with an opportunity to distribute his property between his children and family members or any other beneficiary either by a will or verbally, this will provide a  peaceful distribution of his estate when he dies, and his estate will be distributed accordingly as stipulated by him in the will, unlike in a situation where the testator dies without providing a means how his estate will be distributed this provides fertile ground for conflict either amongst his children or amidst his family in general.

  Also, when a person dies not living behind a will or a means how his properties will be administered or distributed, the law provides a means for a peaceful distribution through the next of kin, the property of the deceased will be managed and distributed by the next of kin in accordance as provided by the law. Although succession law plays a vital role in our contemporary society, the practice is less inapplicable in Africa and Cameroon especially, this can be seen as a result of the fact that; 

1. Death is sudden because of low life expectancy;
2. People are not properly oriented on the importance of making a will and providing a means on how their estates will be distributed;
3. Most people see no need to make a will; they consider the means as expensive they consider that going and hiring a lawyer to make a will is expensive;
4. The fear of witchcraft scares people from making wills because making a will to them will only hasten their death.

However this work will discuss how the estate of a deceased person will be managed in various scenarios like in a situation where a person dies testate that is he dies haven made a will the way his estate will be managed and also the rules that govern testate succession and also in a situation where a person dies intestate that is without a will, how his estate is managed that is the rules that govern intestacy, the are other instances like privilege wills, wills made under customary law the rules that govern them.   

1.2 STATEMENT OF THE PROBLEM

Succession signifies the devolution of property to a living person upon the death of its owner or simply the devolution of the property upon the death of its owner. The law of succession can be termed an instrument of wealth planning, an instrument of capitalism for the distribution of wealth; who takes what on the death of the deceased. Sooner or later in one’s life, one is bound to come across the problem of succession, the problem for example in land law or family. In almost every society especially Cameroon moving towards civilization, problems of succession are bound to occur.

In Cameroon, succession law is not greatly noticed this is as a result of many factors like, Cameroon does not have any specific law that governs succession she still relies on the imported systems of laws, that is; the English common law and the French civil law, consequently, laws that govern succession in Cameroon are borrowed laws, which will not in some situations match with our Cameroonian situation.

This then will cause succession law in Cameroon to be inappropriate and inapplicable in certain cases, so in order to have an appropriate succession law in Cameroon, laws have to be made which are in accordance with the ways of life of the people; that is; laws have to be made taking into consideration customs traditions and ways of life in as far as the laws are not repugnant to natural justice equity and good conscience, so if laws are made which match the ways of life of the people, succession law will be more efficient and effective in Cameroon.

Moreover, succession law in Cameroon also faces a problem in that people are not properly oriented on its importance this is as a result that many people are illiterates and can neither read nor understand the importance of succession the do not know the importance of making wills or providing a means on how their estates will be managed when there are no more.

However, if people are properly oriented on succession law the will turn to be a more efficient and applicable succession law in Cameroon and will reduce conflict in the administration of the estate of the deceased in Cameroon. The issue that arises is the freedom of wills that is, is one free to deal with one’s property in whichever way one desires?

1.3 RESEARCH QUESTIONS

The various research question includes;

• What are the laws that regulate insurance in Cameroon?
• What the rules that govern succession in the customary law?
• Which regulation has been put in place to restore the conflict that exists between the English law and Customary rule with regards to succession?

1.4 RESEARCH OBJECTIVE

1.4.1 Main Objective

The main objective of this research is to examine succession laws and practice in the Cameroonian legal system.

1.4.2 Specific Objectives

The specific objective of this research include;

• To examine the laws regulating succession law in the various legal systems.
• The applicability of types of succession in Cameroon.
• To assess the rules that govern the customary system of succession.
• To regulate the conflict that exists between modernized succession laws and the customary rule.

FURTHER READINGS: ISSUES AND PROSPECTS OF CONFLICT OF LAWS ON SUCCESSION IN CAMEROON

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