12. Death and the estate

Before 2007 the answer depended on the marriage and on section 26. A native who died intestate might take his family under customary law, or, if he died a Muslim in the Western Area, under section 9 of the Mohammedan Marriage Act. Administration of Estates Act, Cap. 45, supplied the general-law order for everyone else. Cole v Cole would have sent even a Christian native into English intestacy. The Devolution of Estates Act 2007, No. 21 of 2007, replaces that patchwork for property that falls into the estate.

The Act applies to every person who dies leaving property in Sierra Leone, irrespective of religion or ethnic origin, and to deaths after it came into operation. It does not apply to family property, chieftaincy property or community property held under customary law. Those continue to devolve under the applicable custom. A surviving spouse has a right to reside for life in the matrimonial home even where that home is family, chieftaincy or community property. The Act also does not revive a claim already barred by the Limitation Act 1961.

A spouse, for the Act, is a person married to the deceased under the Civil Marriage Act, the Christian Marriage Act, the Mohammedan Marriage Act, or customary law. It is also an unmarried man or woman who cohabited with the unmarried deceased, as husband and wife, for not less than five years immediately before the death. A child includes a child of a lawful spouse, a child born while the deceased was unmarried and recognised by the deceased, a child born during the marriage whom the deceased and the spouse recognised, and an adopted child. A will includes a will recognised under Muslim law or customary law, and a codicil.

The estate, after debts and expenses, is distributed as the Act says. If the intestate leaves a spouse and no child or other issue, the spouse takes the whole. If there is more than one spouse and no child, they take in proportion to the length of each marriage and to what each contributed. If the intestate leaves a child and no spouse, the child takes the whole, or the children take equally. If the intestate leaves a spouse, a child and a parent, the estate is divided thirty-five per cent to the spouse, thirty-five per cent to the child, fifteen per cent to the parent, and fifteen per cent according to customary law or Muslim law, as applicable. If there is no spouse, child or grandchild, but there is a parent or a brother or sister, seventy-five per cent goes to the parents and siblings in equal shares and twenty-five per cent by customary or Muslim law. The same seventy-five and twenty-five split applies if only brothers and sisters survive, or if only a parent survives. A grandchild stands in the place of a child who died first, and takes what that child would have taken. A child conceived before the death and born after it inherits as if born in the lifetime and as if he had survived. If customary law or Muslim law cannot be applied to the fraction that is reserved for it, that fraction is shared equally by the beneficiaries who already take under the relevant section.

The house is dealt with separately. If there is one house, the surviving spouse or child, or both, are entitled to it. If both take, they hold as tenants in common. If there are several houses, the spouse has the first choice. Where they cannot agree, the High Court decides. A surviving spouse may reside for life in one house. Where there is no spouse, a parent may reside for life in the house that passes to the child. Personal chattels pass to the spouse and child, and if there is neither, to a parent, and if there is none, to the brothers and sisters. If no one entitled survives, the estate goes to the State as bona vacantia. A natural child is also entitled to maintenance and education out of the estate.

Letters of administration go first to the spouse. Section 3 gives the surviving spouse the right to apply. If there is more than one spouse, the spouse who married first has the prior right to apply, and if that spouse refuses or cannot apply, the next spouse applies. The High Court may appoint a receiver if the property is at risk before the grant.

A will is valid if it is a will under the general law, or a will recognised under Muslim law or customary law. The court may intervene where the will does not make reasonable provision for a dependant and the dependant is in hardship. A dependant includes a spouse, a child, a parent, and a person the deceased was obliged to maintain. The application is under section 22. The court looks at the reasons the testator left, at the means and conduct of the applicant, at the size of the estate, and at contributions the applicant made, including care of the home and of the family. Classically, a Muslim will could give no more than one-third to a non-heir and could not rewrite the heirs' shares without their consent. The 2007 Act does not enact those fractions. It does let a dependant ask the court to vary an unreasonable will. Section 30 is the slayer rule. A person who intentionally causes the death forfeits any right to inherit. It is not enough that he was somewhere in the chain of events.

Small estates, not above the sum then fixed, devolve in a simpler order: spouse and child, then parent, then brothers and sisters, then the next of kin. Intermeddling with an estate without authority is an offence.

Customary testate succession, as Smart described it, allowed a person to declare his wishes, often orally before witnesses, with limits on what family property he could give away. The 2007 Act now treats a customary will as a will, and it leaves family property outside the estate. Both propositions are true at once. The house a man built on family land may not be his to devise. His personal estate is.