The Bojang Estate: A House, a Promise and Two Widows
Mamadou Bojang, a Muslim trader of Bundung, died on 3 March 2025. Debts and funeral expenses have been paid. The net estate is D2,400,000: the family house at Bundung valued at D1,000,000, D1,100,000 in a bank account, and stock worth D300,000. In his final weeks he told his brother and his imam, in the presence of his eldest son Musa, that 'the house at Bundung should go to Musa because he looked after me'. In 2022 he had also signed a one-page document headed 'will' leaving 'everything to my children equally'; it was not attested by any witness. He is survived by two wives, Fatou and Isatou, three sons, Musa, Lamin and Ousman, two daughters, Mariama and Haddy, and a brother, Kebba. Musa has taken the house, changed the locks, refuses the widows entry, and says the house is his by his father's will. Fatou wants to know what she is entitled to and how to obtain it.
1. Advise on the validity and effect of the 2022 document and of the oral declaration about the house.
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Governing law. The deceased was a Muslim domiciled in The Gambia; his succession devolves under Islamic law, administered by the Cadi Courts, and the Wills Act does not displace Islamic rules of wasiyya for a Muslim testator to the extent they conflict. Confirm the current statutory allocation of jurisdiction before filing.
Rules on bequests. Three rules govern: (i) a bequest to an heir is ineffective unless the other heirs consent, and the consent must be given after the death, not in the testator's lifetime; (ii) a bequest may not exceed one-third of the net estate after debts and funeral expenses; (iii) a bequest is revocable and must be identified with sufficient certainty.
The 2022 document. It purports to give the estate to the children - but the children are the heirs, so it is a bequest to heirs and fails without the consent of all of them. It also offends the one-third cap. As to form, a purported will requires signature and attestation by two witnesses; this document has none. For a Muslim testator the Cadi Court will look at substance rather than form, but a wholly unattested document leaving everything to the heirs is of no effect.
The oral declaration. It is a bequest to an heir (Musa), made in the last illness, and so is subject to the same two limits: consent of the other heirs and one-third. It is at best a deathbed disposition (marad al-mawt) with the same cap. It also overlaps with the 2022 document; two inconsistent dispositions raise the question of which is later and whether one revoked the other, but neither can succeed beyond one-third without consent.
Conclusion. Musa has no title to the house. The house falls into the estate to be distributed, unless all the other heirs, after the death, give free and informed written consent to a bequest to him limited to one-third of the net estate.
2. Calculate each heir's share on the footing that the other heirs do not consent to the bequest, and state how the figures change if they all consent.
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Heirs. Two widows, three sons and two daughters. The brother Kebba is excluded: a male descendant in the direct line blocks the agnatic collateral.
Without consent. The bequest fails entirely and D2,400,000 is distributed.
- Widows take one-eighth collectively: 1/8 × 2,400,000 = D300,000; D150,000 each.
- Children take the residue, seven-eighths: 7/8 × 2,400,000 = D2,100,000, divided in the ratio 2:1 (son:daughter). Three sons count as six units; two daughters as two units; eight units in all. One unit = 2,100,000 ÷ 8 = D262,500.
- Each son: two units = D525,000. Each daughter: one unit = D262,500.
- Check: 3 × 525,000 = 1,575,000; 2 × 262,500 = 525,000; total 2,100,000, plus 300,000 to the widows = D2,400,000.
With consent of all heirs. The bequest to Musa is valid only up to one-third of the net estate: 1/3 × 2,400,000 = D800,000. The house is worth D1,000,000, so D200,000 of its value remains in the estate.
- Distributable estate: 2,400,000 − 800,000 = D1,600,000.
- Widows: 1/8 = D200,000; D100,000 each.
- Children: 7/8 = D1,400,000; one unit = 1,400,000 ÷ 8 = D175,000. Each son D350,000; each daughter D175,000.
- Musa's total: D800,000 (bequest) + D350,000 (residuary share) = D1,150,000.
- Check: 800,000 + 200,000 + 1,400,000 = D2,400,000.
Practical point. If Musa keeps the whole house he must bring D200,000 into the estate, or the house should be sold and the proceeds divided. Consent must be recorded in writing after the death, before the Cadi Court, and each heir must understand that consent reduces his or her share.
3. Which court should be seised of the estate, and what should Fatou do about Musa's occupation of the house?
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Forum. The Cadi Court has jurisdiction over the succession of a Muslim and is the natural forum for determining the validity of the bequests and issuing a distribution certificate. The High Court retains probate jurisdiction and may grant letters of administration, and will apply Islamic law or remit the matter to the Cadi Court. In practice the financial institutions holding the D1,100,000 will release funds only against a grant or certificate, so the first step is to ascertain which court's grant the bank will accept and to apply there without delay.
Fatou's substantive position. As a widow with children she takes one-eighth collectively with Isatou, that is D150,000 on the no-consent figures. Islamic law gives her a share in the estate, not an automatic right to occupy the matrimonial house; any right of residence would depend on agreement, so she should not frame her case as a right to remain, but as a right to her share.
Musa's occupation. Once debts and funeral expenses are paid, the estate vests in the heirs in their shares. Musa's exclusive possession and refusal of entry is a trespass against his co-heirs. Fatou should:
- Apply to the Cadi Court for a determination of the shares and a certificate of distribution, joining all heirs.
- Seek an order for partition or sale of the house with the proceeds divided according to the shares, since the house cannot conveniently be divided.
- Claim an account of any rents received and mesne profits for Musa's exclusive occupation; if he has taken stock or bank funds, seek an account of those as well.
- Seek an interim injunction restraining further dealing with, or disposal of, the house pending determination, supported by evidence of his change of the locks.
Caution on delay. She should act quickly: the longer Musa occupies without challenge, the more likely a court is to treat the occupation as accepted. A caveat or notice against the property at the Deeds Registry is also worth considering.