Monday, 21 May 2018

RECOVERY OF DEBT FROM THE DEAD

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A friend recently called me to seek legal advice. She narrated that her uncle was concerned about how he could recover money he lent a business partner who had recently died without paying back the borrowed money; she wondered if it was even possible to recover money from a dead person.

A debt is a sum of money owed by one person called a debtor to another, called a creditor.

Upon the death of a person, he ceases to have a legal personality; this means that the dead person cannot sue and cannot be sued; neither can a case be filed in court on his behalf in a representative capacity. However, upon the death of a person, he is deemed to have died leaving behind what is known as an Estate.

An Estate has been defined to mean ‘the property that one leaves after death; the collective assets and liabilities of a dead person.’[1] The estate of a deceased person is therefore made up of not just what he owns at his death, but what he owes others.
The estate of a deceased person is vested by law in his personal representatives; his executors and administrators. The law also provides that any right of action which was vested in the deceased before his death or in another person against the deceased can be exercised by and against the personal representatives.

All of these show that even after the death of a person, there is still continuity in the administration of the affairs of a dead person.
The Administration of Estate Law of Lagos State provides that ‘the real and personal estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the real and personal estate of which a deceased person in pursuance of any general power disposes by his will, are assets for payment of his debts (whether by specialty or simple contract) and liabilities…’[2]. It is immaterial that the deceased died with or without a will, because in either case, creditors are given priority. It is only after the debts of the deceased have been paid off that the beneficiaries or persons who have an interest in the estate of the deceased will be considered.

The foregoing clearly indicates that upon the death of a person, any debt which was owed by such a person in his lifetime can be recovered from his estate upon his death.

The procedure for the recovery of debt from the estate of a deceased is as follows:
  1. The very first step is that the debt claimed must be certain: a creditor will not be paid the money he claims, if he cannot show clearly the amount he is owed. This also means that the creditor must show that indeed the deceased was indebted to him before he died. This underscores the importance of always having a written agreement; this is because even when the debtor is dead, the agreement will still speak.
  2. The next step is to write a letter of demand to the personal representatives of the deceased. A debt does not fall due for repayment until there is a demand, or after the date agreed for its repayment is passed. A formal demand for the repayment of the debt must therefore be made. It is usually best to attach proof of the deceased’s indebtedness to the letter of demand. 
  3. If the personal representatives of the estate of the deceased still refuse to pay the debt after a demand is made, then an action can be instituted in court for the recovery of the debt. Though it is best to explore other alternatives such as negotiation and mediation before resort is had to litigation.It must however be stated that the right to have a debt repaid by the estate of a deceased person is subject to the sufficiency of the estate to pay that debt. In a case where the deceased died without leaving behind any asset which would be sufficient to pay the debt he owes, then the creditor will be left with a bare right; an unenforceable right.
The law recognises that a person before his death might have incurred some liabilities or obligations and has therefore made provisions for the fulfilment of those obligations where the obligations need not be performed personally by the deceased.

[1] CAREW V. OGUNTOKUN & ORS. (2011) LPELR-9355(SC)
[2] See section 36 of the Law.

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