ASSENT

This is an important document in vesting property of a deceased person in a beneficiary – Renner v. Renner (1961) All NLR 244 at 246. This is because on the death of a deceased person, his property is first under the administration of his personal representatives before being vested in the beneficiary. In Menkiti v. Agina (1965) NMLR 127 at 129, the court observed that the properties of a deceased person, both real and personal are vested on his death in the legal representatives until such time as the legal representatives have finished the administration of the estate when they will transfer the landed properties to the respective beneficiaries by a vesting assent. Assent is usually made in favour of a person who is entitled to the deceased’s real estate either by device, bequest, devolution, or appropriation.

The effect of an assent is to grant the gift in a will. Where assent is used in vesting real property, the assent serves as a document which acknowledges and vests in a legatee or devise under a Will a property in which he is the beneficiary of an estate in land. Only personal representatives grant and confer assents while trustees have no power to grant an assent.

An assent is also a conveyance in the same way as other conveyances. Its legal effect is that it vests in a beneficiary the legal estate to which it relates to. It is therefore a document of title but it only passes title to a beneficiary under a Will or one under the rules of intestacy, but not to a purchaser whose title passes by deed of conveyance.

In practice, a written assent is made under seal, though an assent need not be under seal. Where it is made by deed, it is not a registrable instrument and no stamp duties are paid – section 40(11) Administartion of Estate Law (AEL), Lagos State. However, where it is required to pass title in devisee, it must satisfy some requirements. In the case of Renner v. Renner (supra), the court held that an assent to the vesting of real property must be in writing for writing for the purpose of vesting the legal estate. Apart from being in writing, it must be signed by the personal representatives of the deceased and must name the person in whose favour it is made.

ESSENTIAL ELEMENTS OF AN ASSENT

1.      Must be in writing – Statute requires assent to be in writing. No form of writing is required neither is a particular language required. Writing could be in letters, inscription, symbols, or marks though in most cases in Nigeria, it is in letters and in English language. The advantages of an assent in writing is that the terms of the assent are specifically set out thus removing ambiguities; and an assent which is regarded as a conveyance may be used as a document of title.

2.      Signed by the Personal Representatives – This is to signify the vesting of the property in the beneficiary by the personal representatives of the deceased since the benefactor is no longer alive. There is no corresponding requirement that the beneficiary signs the assent. This is however done in practice.

3.      Must name the person in whose favour it is made – An assent must name the beneficiary or the devisee of the property being vested. He should be the person who under the Will of the deceased, is entitled to the property. Designating the person in whose favour an assent is made removes any doubt on the identity of the successor to the property. An assent which does not name the beneficiary shall not pass any legal estate – section 40(5) AEL, Lagos State. Any person in whose favour an assent or conveyance of a legal estate is made by a personal representative, may require that notice of the assent or conveyance be written or endorsed on, or permanently annexed to the probate or letters of administration at the cost of the estate of the deceased and that the probate or letters of administration be produced at the like cost to prove that the notice has been placed there or annexed.

FORMAL PARTS OF ASSENT

An assent has the following major parts: commencement, parties, vesting/assent clause, declaration clause, acknowledgment clause, testimonium and execution/attestation clause.

COMMENCEMENT – This describes the nature of the document.

PARTIES CLAUSE – This states the names of the personal representatives with competing rights in the documents but simply personal representatives to vest the title in the beneficiary. Similarly, the beneficiary is not a real party in the real sense of having competing rights in the transaction.

VESTING CLAUSE – This is the operative (active) clause in the document which confers the property on the beneficiary.

DECLARATION CLAUSE – This is an affirmation by the personal representatives that they have not dealt contrary to the property to vest it in another person apart from the current one.

ACKNOWLEDGMENT CLAUSE – This guarantees the right of the beneficiary that the personal representatives would produce any documents (such as the Will, probate, receipts, etc.) in their possession in the event that the beneficiary makes a demand or request of them.

TESTIMONIUM – This connects the parties to the contents of the document.

EXECUTION/ATTESTATION CLAUSE – This contains the signature of the parties as well as the particulars of the witnesses to the agreement.