A Vesting Assent is a legal document which transfers the ownership of normally immovable property of a Deceased person to the beneficiaries. Osborn concise law dictionary 8th edition– defines vesting assent as the instrument whereby a person’s representative, after the death of a tenant for life or statutory owner vests settled land in a person entitled as tenant for life or statutory owner. The Administrator(s) or Executor(s) of the Estate of the Deceased are the persons to execute this Vesting Assent. The Administrator(s) or Executor(s) if they are beneficiaries of the Estate can vest the property in themselves. Administration of Estates Act, 1961, Act 63 governs/regulates the administration of estates in Ghana.
In the case of OPANIN YAW OKYERE V. OPANIN APPENTENG AND AKUA ADOMAA SUPREME COURT· CIVIL APPEAL NO. J4/17/2008 · 23 NOV 2011· The Honourable Court indicated that Section 1(1) of the Administration of Estates Act, 1961, Act 63 states that the movable and immovable property of deceased person shall devolve on his personal representatives with effect from his/her death. When a person dies testate or intestate, his/her estate devolves on the executor or personal representative until vesting assent is executed for and issued to the beneficiaries or devisees; the beneficiaries and devisees have no title or locus standi over the estate until the vesting assent has been duly executed. This means that the beneficiaries do not have capacity to deal with the estate even though they are beneficiaries. Capacity goes to the root of every case and where the capacity of a party is challenged especially that of the Plaintiff, the court must first resolve that issue because a person without capacity cannot be given a hearing even though he may have an iron cast case. Capacity to institute an action is a precondition to the institute of an action in court – Yorkwa v Duah [1993/3] GBR 278.
The court in the Yorkwa case expatiated on the issues affecting vesting assent. The court indicated that if the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him/her a vesting assent, then what does such a person do in a situation where the estate is being mismanaged? It answered this question by stating that at equity, such a person should be able to mount an action to protect the estate, or to save it from being dissipated or wasted. The plaintiff in such an action will be acting on the basis of his/her expectant interest in the estate, not in his/her capacity as a title holder under a will or grant at customary or statutory law.
The court then outlined the development of the law with regard to the vesting of property of a deceased over the years. At common law prior to the enactment of the Land Transfer Act, 1897 of England, the real estate of a deceased did not vest in his personal representative, but passed immediately to his/her heir or devisee, as the case may be. There was thus no need for probate or letters of administration. An executor or an administrator would not have any rights over the devised property, since it was already vested in the devisee. This position was changed by the Land Transfer Act, 1897, which, however, never applied in Ghana. Under that Act, in relation to deaths occurring after 1897, all the property of a deceased became vested in his or her personal representative. The personal representative had full powers of management and could therefore sell the property vested in him or her in order to pay debts owed by the estate. To transfer title to a devisee, a personal representative had to execute a conveyance or an assent. An assent did not need to be in writing. Any conduct of the personal representative which showed that he had assented to the gift was sufficient. This led to the unsatisfactory situation where to establish the title of a devisee, he or she might have to prove facts showing the personal representative’s assent. This mischief was cured by the provision in the Administration of Estates Act, 1925 that no assent made after 1925 could pass a legal estate in land unless it was in writing and signed by the personal representative. This had the effect of making provision for a proper paper title for the interests of devisees. This provision made it clear that a devisee’s title was based on the assent and not on the will. The Administration of Estates Act, 1961 of Ghana adopted the tenets of the 1925 Act of England and the current Ghanaian law is no longer the common law position as it was prior to the enactment of the Administration of Estates Act, 1961.
The relevant sections of the Act 63, ie sections 1 (1), 2 (1) and 96 (1) are as follows:
“1. (1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death …
- (1) The personal representatives shall be the representative of the deceased in regard to his movable and immovable property…
- (1) A personal representative may assent to the vesting, in the form set out in the Third Schedule to this Act, in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto…”
It is therefore imperative that before administering the estate or carrying out the intentions of a testator, the will must first be read and admitted to probate and where the deceased died intestate, letters of administration obtained. Thereafter, a beneficiary of any real estate under the will or under the intestacy must have a vesting assent executed in his/her favour by the executors to whom probate has been granted or the grantees of the Letters of administration. Even after the vesting assent had been executed, it would still not have any legal efficacy until after it had been registered under the then Land Registry Act, 1962 (Act 122) now the Land Act, 2020 (Act 1036).
In conclusion, in the absence of the vesting assent executed in favour of the beneficiary or devisee and registration of same, any purported sale of the real estate by the beneficiary or the devisee will be of no legal consequence and the purchaser thereof will have no valid title since that beneficiary would not have the requisite capacity to grant an interest in the property.
Author: Vida N. Odonkor Esq.
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