Introduction

Administrators of the estate of deceased persons sometimes hold on to property of the estate for so long that they not only begin to think of themselves as owners of the property but actually act like owners – exercising powers that they do not have. Never mind the clear and instructive provision of Section 104 of the Administration of Estates Act, 1961 (Act 63), which provides that “a personal representative [including an administrator] shall distribute the estate of a deceased person within one year after he has been granted probate or letters of administration.”

In the case under review, Nii Ashitey Tetteh & 3 Ors (Suing as administrators and Beneficiaries of the Estate of the Late James Macpherson Attram) v Ofori Transport Ltd[1], aspects of the case dealt with the power of an administrator to commit the property of the estate for 40 years. The Court of Appeal made it clear that while administrators of an estate have the power to manage, preserve, and protect the estate of the deceased person, these powers were not only time-bound but did not mature into ownership rights. In the words of the Court:

“We note with profound sympathy that considerable emphasis was placed in the submissions of both counsel on the question whether Emma Okoryo Attram held valid letters of administration to deal with the estate. It appears that it was assumed that the grant of Letters of Administration empowered her to deal with the estate as she deemed fit. It bears stressing that the grant of letters of administration does not, per se, vest ownership of the property in the administrator.”

Background to the Dispute

The dispute concerned property number D771/4, Beach Avenue, Okaishie, Accra, which formed part of the estate of the late James Macpherson Attram, who died in 1926. The property had originally been leased for 50 years, with an option to renew for an additional 25 years. The respondent, Ofori Transport Ltd, later claimed that in 1980, Emma Okoryo Attram, described as administratrix or caretaker of the estate, granted it an additional 40-year lease to take effect after the expiry of the earlier leasehold arrangement.

The appellants challenged the alleged 40-year lease. They argued that Emma Okoryo Attram lacked capacity to bind the entire Attram family and that, even if she had some role in managing the estate, she could not single-handedly alienate or encumber the family property for 40 years.

The central question was whether Emma Okoryo Attram, by reason of her position as caretaker or alleged administratrix, had power to grant a long lease over property belonging to the wider family or estate.

The Court of Appeal accepted that Emma had some authority to manage the estate. The appellants themselves had previously described Emma Okoryo Attram and F.K. Attram as caretakers of the estate in their affidavit filed in support of an application for letters of administration. The Court therefore accepted that she had performed some managerial or representative role.

However, the Court drew a firm line between authority to manage and authority to alienate. It held that Emma’s role as caretaker did not entitle her to bind the whole family by granting a 40-year lease without the family’s consent.

Administrators Do Not Become Owners

Drawing on a long line of authorities, the Court of Appeal noted that the grant of letters of administration did not make the administrator the owner of the property. Rather, the grant authorizes the administrator to collect, preserve, manage, and distribute the estate in accordance with law.

As previously noted, the Court of Appeal was emphatic that “the grant of Letters of Administration does not, per se, vest ownership of the property in the administrator”.

This principle is important because administrators sometimes act, or are treated by third parties, as though the grant gives them personal proprietary power over the estate. The Court rejected that approach. Even if Emma had obtained letters of administration, those letters would not have authorized her to treat the estate as her personal property.

Fiduciary Nature of the Administrator’s Role

The Court of Appeal further took a dim view of the administrator’s conduct in acting as though she had ownership rights over the property in issue. In the view of the Court, the administrator stood only in a fiduciary position in relation to the beneficiaries of the estate. Therefore, the fiduciary nature of the administrator’s office barred her from seeking to profit personally and directly from her office as administrator. Evidence was led to establish the fact that the administratrix approached the Respondents for financial assistance to develop her own property. To this, the Court noted that:

“A shepherd entrusted with the flock who sells the lamb for her own purse betrays her charge, even if she does so innocently, believing the flock to be her own. So too an administratrix who treats trust property as her own converts guardianship into gain, and equity will not allow the innocence of the mistake to validate the breach.”

Interaction between Letters of Administration and Family Property

While the grant of letters of administration can only be in respect of the self-acquired property of the deceased person, it is entirely possible that upon the grant of the letters of administration, some of the properties may become family property. This is particularly so in respect of the aspect of the property that goes to the customary successor of the deceased.

Where property has become family property under customary law, an administrator’s powers must be understood within that customary context. The administrator cannot bypass the family’s collective interest merely because he or she holds letters of administration.

The Court noted that, under customary law, family property belongs to the whole lineage, including unborn members. Thus, where property is family property, the administrator’s mandate is limited by the proprietary rights of the family as a collective body. The administrator cannot use the grant as a device to defeat those interests. In the words of the Court:

“…even if letters of administration were granted to Emma Okoryo Attram in respect of the estate of James Macpherson Attram, the grant was not intended for her personal benefit. She became a trustee for the family and could not alienate the estate or encumber it without the consent and concurrence of the family.”

[1]Suit No. H1/172/2024 (Coram: Angelina Mensah-Homiah JA; Alexander Osei Tutu, JA & Charles A. Wilson, JA)