The Hierarchy of Succession in Civil Law

The Hierarchy of Succession in Civil Law

The Oxford Advanced Learner’s Dictionary defines succession as “the act of taking over an official position or title; the right to take over an official position or title.” In ordinary life, succession signifies the transfer of property and liabilities from a deceased to one or more living persons. In Cameroon, successors are well defined and stratified.

Awill is a document that spells out the wishes of a deceased vis-à-vis the distribution of his or her assets. In the aftermath of death, different parties, as the case might be, are obliged to accept a deceased’s testament as the ultimate determiner of who possesses what and how much property. Serenity and harmony are expected to characterize families wherein the deceased established a legal and authentic will. Genesis 3:19 affirms that we are dust, and unto dust we shall return. Against this backdrop, humans can preview the partitioning of their property while still alive. In concrete terms, previewing means establishing a will or testament. In the absence of this essential document, succession becomes a complex equation to solve. This is when the Civil Code, a regulation in force in French-speaking Cameroon, sets in.

The Civil Code and Intestate Succession

Article 731 of the Civil Code lays down the categories of beneficiaries based on consanguinity and affinity with the deceased:

“The properties are granted to the children and descendants of the deceased, to his ascendants, to his collateral parents and to his surviving partner in that order and in accordance with rules hereinafter to be determined.”

The rule above suggests that family relation, affiliation and adoption, form the basis upon which succession rights are determined between the deceased and the successors. Firstly, the family relation, affiliation and adoption should be interpreted in 3 folds as relationship originating from the deceased, his parents and finally his grandparents. The 2nd presumption by Article 731 is that succession is based on the presumed affection of the deceased. Therefore, family

relation, affiliation and adoption, as well as presumed affection of the deceased constitute the guiding principles in determining the intestate beneficiaries. In succession, priority is given to the blood relations of the deceased. The proximity of the descendants starts with the children while that of the ascendants starts with the parents of the deceased. The descendants as the first recipients of the deceased’s affection are comprised of the children of the deceased and subsequent descendants to an indefinite degree. Article 735 of the Civil Code classifies children, grandchildren

and parents under first degree, uncles, aunties, nephews and nieces under second degree and cousins third. There can be as many successors as possible insofar as each member of the chain relates with the deceased. For instance, Section IV of the Civil Code stipulates that, if the deceased doesn’t have children, grandchildren, brothers, sisters, nephews or nieces, succession will be shared equitably between maternal ascendants.

First Degree Successors

As seen in Article 731, first degree successors are the children and descendants or grandchildren to the deceased. Adopted children fall within this first class. The term “children” encompasses legitimate children, children born out of wedlock and recognised, and adopted children. Article 745 (1) of the Civil Code stipulates:

“The children or descendants succeed to their father and mother, grandfather, grandmother, or other ascendants without distinction of sex or of primogeniture…”

The Civil Code establishes complete equality between the sexes. There is no gender discrimination. Also, whether first or last born, every child has the same right to succession. In polygamous homes, for example, the children of the first wife share the same rights with those of cowives. Though the Law does not assign any right of seniority to any one of them, it however gives room to families to intimately appoint a successor, be he the last born, as deserving the respect, honour and reverence which they reserved to their deceased father. For children born out of wedlock, Section VI of the Civil Code lays down conditions to be met before succession. For instance, a child born out of wedlock can vie for inheritance only if he or she was recognized by the deceased prior to death. The recognised however is entitled only to half. This precision is at variance with the Convention which gives equal rights to both legitimate children and children born out of wedlock.

The recognition can be established either before a civil status registrar and 3 witnesses or by a court judgement. For children born out of incest or adultery, they have no right to succession with or without a document of recognition. The Law accords them just the right to feeding. However, following certain international conventions ratified by the State of Cameroon, the preceding rule is being recognized as the fault is not that of the children born out of incest or adultery. Article 758 says a recognised child born out of wedlock shall be given half of what is due the deceased’s legitimate children. But, where legitimate children and ascendants cease to exist, the deceased’s lone child born out of wedlock shall inherit the totality of property, says Article 760. The succession case of Fokam Kamga presents a good illustration. This case concerned 2 illegitimate children of the deceased, who had been recognised and treated by the deceased as his children.

Their quality as beneficiaries had been affirmed by an earlier court ruling at a time when they were still minors and the estate had to be managed by the more elderly legitimate children. In the course of action, the plaintiffs having the age of majority claimed their own share of estate. They did so against the legitimate children who had been managing the property as if they did not exist. The Court confirmed the earlier decision including the plaintiffs as beneficiaries and ordered the partition of the estate.

Second Degree Successors

After children and descendants, the deceased’s affection curve moves down to ascendants. This category is comprised of father and mother. In their case, property will be shared equitably between paternal and maternal lineages. If only one parent is alive, the dead person’s share of property will be handed to ordinary ascendants, who include parents, uncles and aunties.

The Third-Degree Successors

The third degree of successors are also known as collaterals. Collaterals are brothers, sisters, nephews and nieces. They inherit only when the deceased leaves behind neither children nor parents. Nonetheless, the Civil Code gives privilege to brothers and sisters of the deceased. Article 750 of the Code says, in the absence of parents and children of the deceased, his or her brothers, sisters, nephews and nieces are called to inherit. Fourth degree successors are also called ordinary collaterals. They include uncles, aunts, and cousins of the deceased to the sixth degree or generation.

The Place of the Surviving Spouse

The surviving spouse is legally integrated into the succession chain. They are rarely talked about because their place is right at the bottom of the hierarchical order of succession. Before anything else, marriage establishes succession rights between spouses; only they come in in the absence of all categories of the deceased’s children, as well as parents. First and foremost, the Law allows the surviving spouse to benefit half of their matrimonial property. Usufuctuary also gives him or her entitlement to one quarter of the other half of the estate to which successors are entitled. The usufruct ceases when the surviving spouse remarries or dies.

The State: The Ultimate Love of Everyone

In scenarios where there is no surviving spouse the State inherits the deceased’s property. It should be borne in mind that Articles 739, 740 and 741 of the Civil Code uniformly authorize a replacement where an identified successor succumbs to natural death. The substitute is said to only be someone closely related to the initial successor, who will be entitled to appropriate treatment.

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