How should you deal with the property of the dead?
Intermeddling was a common law concept, which comes from a French word “de son tort.” The phrase literally translates as “executor of his own wrong.” Succession law defines an executor de son tort as someone who wrongfully interferes with the deceased estate administration or assumes the office of executor without legal permission. It is most often someone who could obtain legal authority to act as executor or administrator but chooses to assume responsibility for administering the deceased estate without resorting to the expense and trouble of obtaining a grant of probate.
DEFINITION OF INTERMEDDLING WITH PROPERTY
According to High Court (Civil Procedures ) Rules, 2004 (C.I 47) Oder 66 Rule 3 defines “intermeddling with property “ as Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.
Also, it is also contained under intestate succession law, 1985 (PNDCL 111) infra,
Section 17—Offences against Spouse and Entitled Persons.
Any person who before the distribution of the estate of a deceased person whether testate or intestate
(a) unlawfully ejects a surviving spouse or child from the matrimonial home contrary to the section 16A of this Law;
(b) unlawfully deprives the entitled person of the use of
(i) any part of the property of the entitled person;
(ii) any property shared by the entitled person with the deceased to which the provisions of this Law apply; or
(iii) removes, destroys or otherwise unlawfully interferes with the property of the deceased person,
commits an offence and is liable on summary conviction to a minimum fine of ¢50,000.00 and not exceeding ¢500,000.00 or to a term of imprisonment not exceeding one year and the court or tribunal shall make such other orders as it considers necessary for the re-instatement of or reimbursement to the person thus ejected or deprived. [As substituted by the Intestate Succession (Amendment) Law, 1991 (PNDCL 264), s. 2]
INTRODUCTION
Order 66 Rule 3, of C.I 47 prior to the decision of the Supreme Court, established what is known as the offense of intermeddling. Whenever a person dies, whether testate or intestate, we say that his properties devolve onto his personal representatives (PR). When the person dies testate, then his properties devolve to his executors, and if he dies intestate, his properties devolve to his personal representative or administrators. By law, apart from the personal representatives of the deceased, until the estate is distributed, no other person has the right to use, possess, or deal with the estate of the deceased person until the appointed personal representatives do so by way of vesting assent. Anybody who does so commits the offense of intermeddling. This is similarly contained in Section 17 of PNDC Law 111 (1985). Intermeddling, before the Supreme Court decision in Ex Parte Yvonne Amponsah Brobbey, was therefore in two shapes: Order 66 Rule 3 (C.I 47, 2004) and PNDC Law 111 Section 17. Even though the Supreme Court has struck out, in a recent decision in the case of The Republic v. High Court (Commercial Division), Accra; Ex Parte Yvonne Amponsah Brobbey, Order 66 Rule 3 of C.I 47, it still exists in Section 17 of PNDC Law 111.
DEATH IN LAW
In law, there are two ways a person can die: testate or intestate. A person is presumed to have died testate if the person dies leaving a will. Thus, you can distribute your property in the way and manner you want. On the other hand, a person dies intestate if he dies without leaving a will; hence, their property is distributed according to PNDC Law 111. If a person makes a will, he appoints persons who are to administer his property after his death and distribute it according to his will; those people who are appointed are referred to as Executors. However, if a person dies intestate, he would not have the opportunity to appoint executors, so the court would appoint or foist on you persons to distribute your properties. Those persons are called administrators. Unlike executors being appointed by the Testator, usually trusted friends, administrators are appointed by the court, and the view of the deceased person does not matter.
EX PARTE YVONE AMPONSAH RETROSPECT
In May 2022, the interested party in the above case filed a motion under Order 66 Rule 3 of C.I. 47 at the High Court, praying for an order punishing the Applicant herein and Respondent therein for intermeddling in the estate of the late Richard Nkrumah, who passed away in 2019. The Applicant filed a preliminary objection to the process, contending, inter alia, that intermeddling under the Court rules was a criminal offence that could not be prosecuted by a private person through an originating motion on notice. The Applicant further contended that the Rules of Court Committee acted in excess of its jurisdiction when it created a criminal offence under Order 66 Rule 4 (sic) of C.I. 47 and that the High Court lacked jurisdiction to entertain the application. Upon hearing the parties, the trial judge dismissed the preliminary objection and assumed jurisdiction to hear the case, holding that an action to punish a person for intermeddling could be commenced by civil proceedings. The Applicant successfully invoked the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the order of the High Court dated 7th June 2022.
According to the Supreme Court’s judgment in The Republic v. High Court (Commercial Division), Accra; Ex Parte Yvonne Amponsah Brobbey (Gladys Nkrumah – Interested Party), they state that the law still exists under Section 17 of PNDC Law 111. Section 17 of PNDC Law 111 criminalizes any act of any person that seeks to remove, destroy, or otherwise interfere with the property of the deceased person. These words can be interpreted broadly, particularly the generic terms “otherwise,” “unlawfully,” and “interferes.” Thus, if you are not an executor, you are not an administrator, and you are not a beneficiary, you have no right to interfere with the property of the deceased. If you are a beneficiary, you have no right to interfere with the property of the deceased before distribution. Clearly, if you want to interpret “otherwise unlawfully interferes,” it would include using, dealing, and administering with the property of the deceased. Even though that has been struck out in Order 66 Rule 3 of C.I. 47, the phrase “unlawfully interferes” still covers the act that was prohibited under Order 66 Rule 3.
PNDC Law 111 and Order 66 Rule 3. Section 17 of PNDC Law 111 regulates offences before the distribution of the property. If we look at the opening sentence, ‘any person who before the distribution of the estate of a deceased person, whether testate or intestate,’ the offences indicated, interpreted literally, cannot be committed after distribution. That is when vesting assent is obtained, distribution is said to be completed. Hence, the commission of intermeddling cannot be cited after distribution. However, with Order 66 Rule 3, the commission of intermeddling can still be cited even after distribution. Again, Section 17 could also punish an executor; Section 17 says ‘any person,’ which could include an executor or an administrator. Order 66 Rule 3 says ‘any person other than an executor or administrator,’ which excludes executors and administrators. Even though the provision, which is Order 66 Rule 3, is the same as under Section 17, there are still some differences that exist.
WHO IS AN ADMINISTRATOR
If you die without making a will, which lawyers say is not the proper thing to do, after your death, some people are entitled by law to apply for the authority to be able to administer your estate or be appointed as your administrators. These people are ranked in order of priorities, and the court is at liberty to choose between any of them, not more than four (4), to administer your estate. The first people or group of people who can apply are your children. Your children are, therefore, entitled to apply to be administrators of your estate. The second group is your spouse or spouses, in Ghana where polygamy is encouraged. The third group is your parents, and the last group is your customary successor. These four groups of people are the only people who can apply to be appointed as administrators of your estate. However, it is at the discretion of the court to appoint any of these classes of people, and the court can choose up to four of any of these people. So, if you have a relative who is dead, you are barred by law from dealing with the property of the deceased unless you have applied to court and the court has appointed you as an administrator. By that power, which we call L.A or Letters of Administration, then you can begin to take control of his property.
CONCLUSION
In conclusion, from the above, it is clear that if someone passes away, some things must not be done. If someone passes away, you should not, by yourself, assert and begin to manage their property as if the law allows it. The proper thing to do is, if they left behind a will, it will be used to determine who benefits from what. If they didn’t leave a will, then PNDC Law 111 would be relied upon to distribute their estate. In that instance, you go for Letters of Administration (LA) so that you become an administrator or administrators of the property, called the estate. In view of that, you may obtain what is called the vesting assent of the estate, which makes you the owner of what has been left by the deceased. If you don’t follow the law and deal with the property as if you have the power to do so, you are intermeddling with that property. This could attract some punishment. The law prescribes that you could attract a punishment of a term of jail, and you could also attract a fine to the tune of GH ₵ 3,000 cedis. That is 250 penalty units. A penalty unit is GH ₵ 12 cedis.