Opinion & Analysis

Preparing for the inevitable: The importance of drafting a valid Will in Ghana 

671views

By: Jennifer Nsiah Sarkodie Esq, 

Pupil, Zoe, Akyea & Co.

“In this world, nothing can be said to be certain except death and taxes.” – Benjamin Franklyn.

Death is an inevitable part of life, yet people neglect to make provisions for Wills. Wills are legal documents that detail how one’s property should be distributed after death. A person who dies testate is one that left behind a valid Will, while a person who dies intestate is left without one.

One of the main reasons- if not the main reason- that leads to disputes among family members regarding the distribution of a deceased’s estate is the failure to prepare a Will. This failure results in the distribution of the estate in accordance with the law (i.e., PNDC 111). This article discusses the importance of drafting a valid Will: Among others, the requirements for making a Will, the different types of Wills, how Wills can be revoked and revived, and what it means to prove a Will.

WHY DRAFT A WILL?

Drafting a Will allows one to dictate exactly how their assets should be distributed upon their passing. This gives the deceased control over who will inherit their property, personal belongings, investments, etc. This is especially important where one would not like for their assets to be subject to laws of intestacy. 

As earlier mentioned, drafting of Wills also helps avoid unnecessary family disputes. Where the testator’sintentions are clearly defined with executors appointed, it minimizes the likelihood of legal battles and most importantly helps the family maintain harmony and grieve properly. The testator can also include in the Will, instructions on how their business should be managed or transferred after their passing. This ensures business continuity, particularly for family businesses. 

The personal wishes of the testator can also be included in the Will. Although such personal wishes not related to asset distribution may not be legally binding, they can provide a guide for loved ones to follow in making decisions concerning the deceased, for instance on issues on funeral arrangements, etc. Another vital factor is the protection of unmarried partners. Although the law would recognize an illegitimate child of a testator, the unmarried partner would have no right to claim any part of the estate. Where the testator may wish to cater to such a partner, it may be expressed in the Will.

CHARACTERISTICS & VALIDITY OF A WILL

A Will is a testamentary disposition that declares upon death an individual’s wishes regarding the distribution of the person’s estate. A Will is ambulatory, meaning it has no effect until the death of the testator. Generally, one can dispose of their properties however they choose, but the same must be done in accordance with the law.

Although one may draft a Will, it is preferable and advisable that a lawyer undertakes the task of drafting. This is crucial because the technicalities involved in drafting a will may not be appreciated by a lay person as would a lawyer. 

What therefore constitutes a valid Will? The Wills Act 1971 (Act 360) stipulates that anyone eighteen (18) years and above, not suffering from insanity or infirmity of mind, may make a Will. The law requires that the testator (the person making the Will) must, at the time of making the Will, understand the nature and effect of the Will. Any Will or provision of a Will obtained by fraud or under duress is null and void. [1] A Will would be considered obtained by fraud where for instance the testator did not actually declare his/ her intentions in the Will or that the Will was signed by another person without the testator’s knowledge or consent. [2] This essentially means the Will cannot be seen to contain the actual intention of the testator as it may either have been forged or the testator may have been threatened to draft it declaring certain intentions not his/ her own. Where the court finds such a Will null and void, it would have no legal effect whatsoever and thus the estate shall be distributed by law through P.N.D.C. Law 111. 

Section 2 of the Wills Act outlines the requirement of a valid Will. First, a Will must be in writing and signed by either the testator or some other person on behalf of the testator in their presence or under their direction. The testator’s signature may be a mark or a thumbprint (See Section 46 of the Interpretation Act, 2009 (Act 792)).

The testator’s signature must also be signed or acknowledged by the testator in the presence of two or more witnesses present at the same time, and each witness must attest to the Will in the presence of the testator. The signature has to be placed underneath the dispositions made in the Will as any disposition inserted after the testator’s signature will have no legal effect as to the direction given. It will be assumed this was inserted by another individual after the Will was signed by the testator. [3]

A beneficiary of a Will, must not sign as a witness to that particular Will unless there are at least two other witnesses to the will who are not beneficiaries. Violation of this rule leads to the beneficiary losing their entitlements under the will and having the property 

lapse into the residuary clause.[4] This means that property would be deemed not passed on anyone and would fall under the clause in the Will that states who shall benefit from the rest of the properties not explicitly bequeathed to anyone.

TYPES OF WILLS

There are various types of Wills, such as Living wills, Mutual Wills, Conditional Wills, Holographic Wills, andTestamentary Trust Wills, amongst others across the world. In Ghana, Wills are categorized into two main types: Wills made according to the statutory testamentary disposition and Wills made according to the customary testamentary disposition. 

A. STATUTORY TESTAMENTARY DISPOSITION

Here, a Will is made according to the Wills Act as a normal Will or as an Armed Forces Will. Under Section 6 of the Wills Act, a member of the Armed Forces, regardless of their age while being engaged in active service, may make a Will by the following means:

• In written form and unattested if the material provisions and signature are in the testator’s handwriting,

• In written form by the testator or not and attested to by a witness or

• Orally by the testator in the presence of two witnesses. 

It is essential to note that the Armed Forces Will remains valid even when the individual has left active service or ceases to be a member of the Armed Forces. 

The law also provides for the creation of Wills for blind or illiterate testators. Their disabilities notwithstanding, they can make Wills that the courts will enforce, provided they meet the essential requirements aforementioned. Save to add that for testators who are illiterate or blind; there is another requirement for the Will to contain a jurat clause. 

The jurat clause shall expressly state, among others, that the contents of the Will were carefully read over and explained to the testator by a competent person. That person shall also state that the testator appeared perfectly to understand the contents of the said Will before it was executed. [5]

Currently, the Supreme Court in Duodu & Ors v. Adomako & Adomako [6] have held that the absence of the jurat does not automatically negate the validity of an otherwise valid Will but rather raises it as a rebuttable presumption. This means the law would requireproponents of such a Will to lead evidence to show that even in the absence of a jurat, the testator fully and perfectly understood the contents of the Will before executing it.

B.CUSTOMARY TESTAMENTARY DISPOSITION (SAMANSIW)

Long before the Supreme Court Ordinance of Gold Coast was enacted on the 31st of March. 1876, ‘samansiw‘, which means oral Will, was a form of testamentary disposition of self-acquired property in the Gold Coast.[7]The practice of ‘samansiw’ however, seems to have originated from and mainly practiced amongst the Akans, as there is no information of it being adopted in other parts of the country like the Northern and Upper regions.[8] This is especially because the Akans are mainlymatrilineal whiles other ethnicities are either patrilineal or a mixture of both.

The late Justice Bensti-Enchill in his article, ‘Intestate Succession Revisited’ commented on Dr. Kludze’s ‘A Century of Changes in the Law of Succession’ where he admitted that there is very little information from legal literature on customary law wills amongst the Ewe and other ethnicities. He stated;

“…although the samansiw or dying declaration according to Dr. Kludze, is not recognized among the Ewe but only ‘treated with great respect’. The trend of authority is such that a court could well decide to enforce the well-attested samansiw of an Ewe.” [9]

The case of Mahama Hausa v. Baako Hausa [10] discussed by Azu Crabbe, shows that there may be some areas within patrilineal societies where Samansiw is still practiced or applied by the courts. In this case, the deceased, Salifu Tailor, was a Hausa man and the subject-matter of the dispute was a house situate at Navrongo.The court had to determine amongst other issues, whether the deceased gave away this house to the first Defendantas a gift while he was alive or through an oral will. There was the discussion of the requirements of a valid disposition under samansiw although the deceased hailed from the Upper Region of Ghana with a predominantly patrilineal system.

In the Ga-Adangbe areas of Greater Accra Region, both the matrilineal and patrilineal systems co-exist. The ‘shamansho’ as the Ga speaking people refer to is a form of testamentary disposition practiced in the Ga community.[11]

Although the various communities may have had different ways of distribution of estate upon death, it remains the function of the courts to;

“…give effect to the last wishes of the deceased and to uphold them unless there are overriding legal obstacles in the way.”-Annan J. [12]

Customary law generally evolved at a time where writing was not known to most and thus more people opted for oral means to declare their wishes in relation to the distribution of their estate upon passing. 

In Nkrumah & Another v. Manu Taylor, J. (As he then was) stated that:

When village communities were small and the written word was unknown to the customary law the only means of social and commercial intercourse was spoken word.” [13]

Section 19 (3) of the Wills Act expressly states that the provisions of the Act would not affect the validity of an oral testamentary disposition made per customary law. This was done by simply voicing out your wishes before death.

Over the years, the requirements for the validity of a customary Will, has seen some shaping. Previously, the requirements were to have the presence of two witnesses with one being the customary successor of the testator,and ‘aseda’, the acceptance of gifts by giving and receiving of drinks. [14] There were later further modifications to the requirements which was enunciated by the Supreme Court per Akoto-Bamfo (Mrs.) JSC.where the following settled principles were laid out:

1. That the property must be self-acquired,

2. The testator must be of sound mind and,

3. The declaration must be attested to by two credible disinterested witnesses.[15]

REVOCATION OF WILLS

Given the solemn nature of Wills, one may ask if Wills are revocable. Yes, Wills are revocable. The Wills Act outlines specific ways in which one can revoke a Will. A Will may be revoked by the physical destruction of the document by the testator or another person in their presence and by their direction. This means that the destruction has to be done with the intention to revoke, and even where it is their intention but destroyed in their absence, it will not be validly revoked. 

A Will may also be revoked by a written declaration of the testator with the intention to revoke it. The written statement should be executed in the same manner as a Will or simply by executing another (known as a ‘codicil’) which expressly revokes, alters or adds to the previous Will. 

Where the testator does not expressly revoke the previous Will in the current one, the previous Will, will only be deemed revoked to the extent of its inconsistency with the new Will. The revocation would be considered invalid when the Will is destroyed due to fraud, duress, or mistake of fact or law. Thus, in drafting Wills, the first paragraph is usually quoted as:

“I hereby revoke all Wills, codicils, and testaments made by me before this day, especially the Will I made on ….”

One interesting thing to note is that the Act of revocation is reversible. Under Section 10 of the Wills Act, the testator may partially or wholly revive the Will. This may be done by re-executing the Will or by a written declaration of the testator’s intention to revive the Will.

Regarding the Armed Forces Wills, like an ordinary Will (as previously discussed), it may be revoked by making a new Will per the requirements for making an Armed Forces Will or by revocation under Section 9 of the Wills Act as stated.

PROVING A WILL

Upon the death of a Testator, a court may need to determine the validity of a Will in other to allow for the distribution of the estate. This is known as ‘proving the Will’. There are two main ways in which the court will have a Will proved; Proof in Common Form and Proof in Solemn Form.  

Under Proof in Common Form, the Will appears to be regular and well executed, and there seems to be no dispute about its validity. The application for Probate here may be sufficiently supported by affidavits (deposing that the execution and attestation of the Will was done by due process) and other documents or papers as the court may require. [16]

Where the executors have to Prove the Will in Solemn form, it usually means that the validity of the Will has been disputed. With this, they would have to issue a writ seeking the court to declare the Will valid. This comes after any person claiming to have any interest in the deceased’s estate notifies the executors requesting them to prove the Will in solemn form. The person of interest may also decide to go ahead and commence an action against the executors without notifying them to prove the Will. In such an action, the executors become the defendants, and the person(s) of interest, the plaintiff(s). [17] This essentially makes this a Probate action. 

REASONABLE PROVISION

Notwithstanding the desire and duty of the courts to give effect to the intentions of the testator in a Will, one main exception to the general rule is seen under section 13 of the Wills Act, which, among other things, allows the courts- and upon taking account of all relevant circumstances- to make an order for the reasonable provision to be made out of the estate of a testator for the maintenance of the testator’s surviving parents, spouse or children under eighteen years of age, especially where hardship will be caused, upon application to the courts by any of the specified persons. This happens when the testator, for whatever is deemed not to have made any provision in the Will regarding the said class of people. However, such an application for reasonable provision must be made to the appropriate court within three years after the grant of Probate of the testator. This provision can be said to draw inspiration from article 22 (1) of the 1992 Constitution which provides that

“a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a Will.” 

This rule was also applied in the case of Akua Marfoa v. Margaret Akosua Agyeiwaa

Where the court stated the requirements for reasonable provision being that:

“a. The applicant was dependent on the testator;

b. The application has been brought within three years after the grant of probate of the will;

c. The testator failed, during his lifetime, or by his will, to make reasonable provision for the applicant. 

d. The applicant is likely to suffer hardship if no reasonable provision is made for her; and

e. Having regard to all the relevant circumstances, the applicant is entitled to support out of the estate of the deceased testator. [18]

Leave a Response