CHAPTER ONE

INTRODUCTION

It is common knowledge that anybody belonging to a family unit will be bound to come across the problem of succession either in Land law or in Family law. For the purpose of this research there could hardly be a more comparative law for in almost every society moving towards civilization, the problem of succession usually occurs.

Succession can be described as an instrument of wealth planning; an instrument of capitalism for the distribution that is who takes what on the death of the “De Cujus” . Succession as a field of law contains three measure questions namely:

• The question of Wills;
• The question of probate;
• Succession properly speaking.

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid Will or other binding declaration. Alternatively, this may also apply where a Will or declaration has been made, but only applies to part of the estate; this is called “partial intestacy”. Intestacy law, also referred to as the “law of descent and distribution” or” intestate succession”, refers to the body of laws that determine who is entitled to the property from the estate under the rules of inheritance.

1.1 Historical Background of the Study

In England, the Intestacy Rules have been uniform since 1925. These have been supplemented by the discretionary provisions of the Inheritance (Provision for Family and Dependants) Act 1975. In England and Wales, the rules of succession are set out in the Administration of Estate Act and other associated legislations. In the United States of America, the evolution of the law started with the statutes enacted in 1850 by the first legislation. It was followed by the Probate Code of California of 1931. Many states have equally adopted the Uniform Probate Codebut often with some locale variations, in Ohio for example the law of intestate succession has been modified from the Common Law and has been essentially codified.

In April 1850, a comprehensive “Act to provide for the appointment and prescribe the duties of guardians” was enacted referred to as the Guardianship Act of 1850 . Jurisdiction for the appointment and supervision of guardians, both for minors and incompetents, was conferred on the probate judge of each county.

The evolution of probate courts derives historically from the ecclesiastical courts of England. A court of probate and a surrogate court were established in 1793. In 1818, an act for establishing courts of probate was adopted providing every county court in the territory with a probate court and a full code of probate law. The case of Estate of George gives the following historical development of the courts of probate:

It appears that in 1839 there was established in the territory of Wisconsin, courts of probate by acts of the legislative assembly for the territory. The territorial court had jurisdiction to probate Wills, grant of letters of administration, appoint guardian, examine and allow account of executors, administrators, and guardians.

And shall have cognizance of all such other matters and things as the laws of this territory do or may direct. See Territorial Stats. 1839, p. 296. See also Laws of Territory of Michigan 1833, p. 297.

The county courts at the time had two types of jurisdictions; jurisdiction in civil matters and jurisdiction on probate matters and this distinction had been born in mind and illustrated in the cases of Norval v Rice (1853);  and in Brunson v Burnett (1849),   (Haertle, 1962) .

With the historical evolution of the laws of probate, was the passing of a very important legislation called the Non-Contention Probate Rule 1954 which was later amended into the Non-Contention Probate and Amendment Rule 1976. The aim of this statute was to show clearly the exact line of succession and how estate should devolve when the deceased dies intestate; it shows who comes into priority and who follows.

Probate under intestate succession in French and Anglophone Cameroon are very different and under Civil law, the line of succession is completely different from that applied in the Common law system. Another important difference can be observed when looking at what happens when a person dies without leaving a Will under customary law. Before independence, all succession problems were solve in Cameroon following the customs and traditions of the people, this was the view propounded by F.C Fisiy.

But on independence, the people of Cameroon had passed through colonization and the British and French imported laws were already present on the territory and those were the new standards of law and justice and the customary system was being absorbed bit by bit. The situation till date is one mostly dominated by the imported laws notably the Non –Contentious Act of 1976 and further legislations. It can be said today that customary law is present to a very some extend provided it is not contrary to the laws of the land meanwhile in the past they were applied no matter the injustice they brought.

1.2 Research Problem

The question of probate has become a very interesting one in today’s society as many families of the death of usually the father become subjected to the problem of estate distribution and administration, this is mostly the situation in case on intestacy. The problem of our research is to understand what happens in case of death be it testate or intestate and throw more light on the question of probate and the legal rights of every survivor.

1.3 General Objectives

The general objective of this research project is to:

1. Understand how property devolves unto the descendants and survivors when a person dies intestate.
2. Showing the various ways of disposing of a deceased property who died intestate to his beneficiaries by law

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