By: Juliana Twumwaa Obeng
When I was interning at the office of the curator of intestate estates, I was struck by the number of people who seemed overwhelmed by the procedural requirements of the Department. They were often there to have the estates of their deceased loved ones administered, but struggled to navigate the administrative requirements required to do so properly. Inspired by my observations, I decided to write this article to explain the functions of the office of the Curator of Intestate and provide some guidance for those who find themselves in this situation.
When a person dies without leaving a valid will, they are said to have died “intestate”. In The Gambia, the distribution of an intestate estate is governed by the Intestate Estates Act. This law sets out the rules for how the estate will be distributed among the deceased’s surviving family members.
Disputes over Distribution
One of the most common concerns about intestate estates is that there may be disputes over how the estate is distributed. This can arise if there are multiple potential heirs who believe they are entitled to a share of the estate. In The Gambia, The Intestate Estates Act, provides guidelines for the administration of an intestate estate.
If the deceased was not survived by any of the above, the estate will pass to the government of The Gambia under Section 18 of the Act.
Delays in Distribution
Intestate estates may take longer to distribute than those with a will, as there may be legal proceedings required to determine who the rightful beneficiaries are. This delay can be a cause of concern for those who are waiting for their inheritance. This is where the office of the Curator of Intestate Estates comes in. The Curator of Intestate Estates office, under the Ministry of Justice, is responsible for the collection, management, and administration of intestate estates.
The office assumes the responsibility of administering estates of deceased persons on the occurrence of the following events:
a person has died intestate ( meaning they did not leave a will, or some assets are not disposed of by their will);
the deceased, having made a will devising or bequeathing his or her estate, has omitted to appoint an executor;
probate or letters of administration with the will annexed has not been obtained within six months from the death of the testator;
or the deceased has named the Curator as sole executor of his or her will.
The Curator will then apply to the High Court for an order authorizing him or her to administer the estate of the deceased person.
Relatives of the deceased person are required to notify by application to the Office of Intestate Estates. The beneficiaries are asked to fill out a declaration form (D Form) with detailed information about the deceased, his or her estate, beneficiaries, and witnesses. The form shall then be submitted with photocopies of the death certificate of the deceased, birth certificates of the children of the deceased, and marriage certificate of the widow or widower (In the absence of a marriage certificate, an affidavit may be deposed to by a person who is aware of the marriage).
Upon completion and submission of the form, the curator will issue a notice to be published in the Gazette for a period of fourteen days, and shall then apply to the court for an order to administer the estate of the deceased person and the court if satisfied, shall grant the order.
Upon the court granting the order, the Curator then has power over the estate of the deceased. The Curator can also administer an estate without notice if he/she obtains an order to administer the estate of the person, where the court is satisfied that the estate will probably be purloined, lost, destroyed, or damaged, or that great expense will be incurred by delay in the matter.
It must be noted that the Curator also has a limited mandate to administer the estate of a non-ECOWAS national who died in The Gambia while in the employment of the Public Service.
In the case of the aforementioned persons, the Curator is limited to the following: to realize the assets of the deceased within the jurisdiction; pay his or her funeral and testamentary expenses; pay all the debts of the deceased; and remit the balance to the legal representatives of the deceased who are not within the jurisdiction.
The role of Sharia law in Inheritance (Dona or Ketaa)
In addition to the Intestate Estates Act. Sharia law also plays a significant role in the distribution of intestate estates in The Gambia. Sharia law is a legal system based on Islamic principles and is followed by many Muslims around the world.
Under Sharia law, the distribution of an intestate estate is governed by the laws of inheritance known as the laws of Faraid. These laws dictate how the estate of a deceased Muslim is to be distributed among their surviving family members.
The distribution of the estate under Sharia law is based on a fixed formula. The spouse of the deceased is entitled to a certain percentage of the estate, while the remainder is divided among the children of the deceased. If there are no surviving children, the parents of the deceased are entitled to a share of the estate, and if there are no surviving parents, the estate is to be distributed among children or the siblings of the deceased. In the event where there are only female children of the deceased, a percentage of the estate is distributed among the female children, a percentage for the widow (if alive) and the remaining estate is distributed among the siblings of the deceased person. This is because based on sharia law, female children cannot inherit an entire estate of their deceased parent. This is to mean that only females cannot close the inheritance of a deceased Muslim’s entire estate and as such a male must foreclose it.
It is important to note that under Sharia law, the distribution of the estate must be carried out according to the laws of Faraid, regardless of whether the deceased left a will or not. This means that even if the deceased left a will that specifies how they want their assets to be distributed, their wishes may not be carried out if they conflict with the laws of Faraid.
It is also worth noting that in The Gambia, Sharia law is only applicable in matters of personal law such as marriage, divorce, and inheritance for Muslims. Non-Muslims are not subject to Sharia law in these matters and are governed by civil law.
Sharia law plays a significant role in the distribution of intestate estates in The Gambia, particularly for Muslims. The laws of Faraid dictate how the estate of a deceased Muslim is to be distributed among their surviving family members, and this must be carried out regardless of whether the deceased left a will or not. It is important for individuals to understand both civil law and Sharia law to ensure that their assets are distributed according to their wishes and the applicable laws. Seeking legal advice is also recommended in matters of intestate estates to ensure that the distribution is carried out properly in accordance with the law.
In summary, the distribution of an intestate estate can be a complex and lengthy process, and may not necessarily reflect the wishes of the deceased. However, by understanding the rules set out in the Intestate Estates act and the Sharia law, individuals in The Gambia can have a better understanding of how their estate will be distributed if they die without a will.
The writer is a candidate for the BL degree at the Gambia Law School who is passionate about the legal profession. Her affinity for the field drives her to educate the public on various aspects of the application of Gambian laws and the ethics of the legal profession. She achieves this by referring to Precedents, case laws, peer reviewed studies and Acts of the National Assembly. It is important to note that the write-ups are for educational purposes only and should not be relied upon as a substitute for legal advice. Email: firstname.lastname@example.org
https://www.moj.gm/news/b98f50fb-df6d-11ed-8b02-025103a708b7Curator explains the functions of her office.
The intestate Estates Act cap 14:02.