Introduction.
A Deed of Assent (Assent) is an instrument or legal document that comes into existence in furtherance of the devolution of title to real property to beneficiaries under a Will. It is capable of transferring title to a property further to the dictates of the testator and after the grant of probate to the Executors or Legal Administrators of a Will. A named beneficiary in a Will cannot assume legal title or ownership of any property gifted to him in a Will until and unless a deed of assent has been executed in his favour1. This is because a Will does not confer title or ownership to a named beneficiary but only expresses the manner of devolution of the estate of a deceased person.
The effect or purport of an Assent is essentially the same across Nigeria, and the aim of this article is to provide an understanding of a Deed of Assent under the Administration of Estate Laws of Lagos State.
What is a deed of assent?
Generally, assent has been defined by the courts to mean an agreement, approval, or permission, especially verbal or non-verbal conduct (action) reasonably interpreted (construed) as willingness (consent). Under the law of contract, for instance, assent is a fundamental requirement for the formation of a binding contract. Thus, 'assent' generally implies that both parties to an exchange shall have a reasonably clear conception of what they are actually getting, and what they are giving up in return.2 However, within the context of the administration of estates, Assent is an instrument or document used by the Executor or legal Administrator of an estate to vest, pass over, or transfer a legal interest or title in real property to a named beneficiary in a Will. It accords ownership or title to a property disposed of by a testator in a Will. Thus, a Will accords a named beneficiary an equitable interest3 in the property gifted to him while a deed of assent accords him a legal title or ownership of the property.
The Administration of Estate Laws in each State of the Federation dictates how a deceased's estate will be administered in that State. It is worthy of note that after an assent has been properly executed in favour of a beneficiary, any subsequent claim of interest by a third party in respect of a property already assented to a beneficiary may hold no water.4
Effect and Requirements for Assent in Lagos State.
Under the Administration of Estates Law of Lagos State, a beneficiary who has not received assent in writing in his favour from the Executors or legal Administrators of an estate cannot lay claims on their share of real property in the deceased's estate. The law provides that "a personal representative may assent to the vesting in any person who either by devise, bequest, devolution, appropriation or otherwise, may be entitled to, either beneficiary or as a trustee or personal representative, of any estate or interest in real estate to which the testator or interstate was entitled or over which he exercised a general power of appointment by his will and which devolved upon the personal representative". 5
The Courts in resolving the import of the above provision have noted that "There is no doubt that beneficiaries under a Will have interest in the property devised to them under the Will, however, the legal interest in the devised property will only pass to the beneficiaries when a vesting assent is made or executed by the Executor(s)/Executrix(es) appointed under the Will." The law requires the vesting assent to be in writing, not verbal. This is the import of Section 40 (1), (2) & (4) of the Administration of Estate Law of Lagos State. The court noted further that "A beneficial owner of the property is a person who enjoys the benefits of ownership though the property's title is in another name. Conversely, a legal owner is a person who holds the legal title under his name, whereas a beneficial owner is a person who enjoys the benefits of ownership even though the title is in another name."
Considering the above statutory provision and the judicial interpretation given thereto, for a beneficiary to lay claim to property bequeathed to him or her under a Will, the executors or legal administrators of the said Will must have executed a Deed of Assent in the manner and form stipulated by law. 6
Conditions of a Valid Assent.
Inherent in our consideration of the relevant provision of the Administration of Estate Laws of Lagos State above, the conditions that must be satisfied for an assent to be valid become apparent which are:
- The assent must be in writing;
- It must be duly signed by all personal representatives or executors;
- The property in relation to which the assent is granted must be certain and;
- The beneficiary in whose favour it is given must be stated7.
Application for the Registration of a Deed of Assent.
Generally, a deed of assent is not a registrable instrument because it attracts no stamp duty. This is attributed to the fact that prior to the grant of probate or letter of Administration, an estate duty must have been paid. However, where the subject property vested in the beneficiary is real property, it must be registered at the relevant land registry where the real property is located, for example, the Lagos State Lands Registry. The essence of the registration is to create an awareness in both the State and the public that ownership of the said property has changed.
The Directorate of Land Registry, Lands Bureau of Lagos State, has drawn out a checklist of the requirements for its registration. These requirements are:
- An application letter addressed to the Registrar of Titles requesting to register a deed of assent with a functional phone number and email address.
- Two copies of the Deed of Assent/ Vesting Deed.
- Deed must be dated, signed and each page initialled.
- Passport photographs of all the administrators/executors to be attached to the deed.
- The front cover of the deed must be signed and sealed by the solicitor who prepared the deed.
- Spiral/bookbinding.
- A certified true copy of the root of title.
- A certified true copy of the letter of administration/ Will.
- A sworn affidavit deposed to by the administrators/executors attesting to the vesting.
- Original for sighting and one copy of the valid means of identification of all the administrators/executors.
- Payment receipts.8
As stated earlier, once these requirements are properly fulfilled and assent is granted in favour of the named beneficiary, no claim from a third party in respect of any interest in the property would succeed against the claims of the beneficiary.
Conclusion.
A deed of assent is the authority given to a beneficiary to assume ownership or title to the property bequeathed to him by a deceased person under a Will. It is essential in the devolution of the estate of the deceased. Thus, the absence of a deed of assent creates a lacuna in the actualization of the intentions of a Will. It is therefore essential that beneficiaries under a will should be on their toes to ensure that an assent is prepared in their favour in respect of any property gifted to them under the will.
Footnotes
1. See the cases of G. Cappa Ltd V. Ferreira (1966) LPELR-25298(SC) and Unoka v. Agili (2007) 11 NWLR (Pt. 1044) 122 (CA).
2. See President FRN & Anor V. National Assembly & Ors (2022) LPELR-58516(SC).
3. On the nature of the equitable interest of beneficiaries to a property bequeathed to them under a Will, see the decision of the Court of Appeal in the case of Muoghalu & Anor V. Muoghalu & Ors (2019) LPELR-47257(CA) and Iwobi V. Igwemba & Anor (2015) LPELR-40693(CA).
4. Unoka v. Agili (Supra).
5. See Section 40 (4) of Administration of Estate Law of Lagos State.
6. Access Bank V. Onanubi & Ors (2022) LPELR-56555(CA).
7. Section 40 (4) ibid.
8. https://landsbureau.lagosstate.gov.ng/directorate-of-land-registry/ visited on 29th June 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.