In Ghana, the death of a person without a “Will” will invite an intestate succession to the estate. In the past, the role of the extended family of deceased persons without a “Will” was a bane for long protracted family wrangling and war of attrition of the family and in many cases the estate. The PNDC Law 111 became the sin qua non for ameliorating such situations. The interpretation of the PNDC Law 111 has not been without some nuances considering the construct of the Ghanaian family.
The no preparation of a “Will” has a dichotomous interpretation. For some, preparing a “Will” means preparing to die (the Ghanaian fear of death is unparalleled even at a frail old age of 100 years) while for others not leaving a “Will” particularly in a polygamous family leaves the entire decision of the distribution of the estate to the intestate succession law thereby making the deceased not look bad in the thinking of the family.
PNDC Law 111 therefore deals with the distribution of the estate of a person who dies without a testamentary disposition of self-acquired property. PNDC Law 111 was, and still is a strident victory of the Ghanaian judiciary particularly the deep thinking of gracious men who had the wellbeing of the Ghanaian society at heart.
Death is the most painful for the living; no well-meaning family must be made to further go through excruciating pain because of an intestate succession process. Due to the nature of deceitful people and the act of thievery through the help of some wicked family members who always want to reap where they have not sown, it is always advisable to prepare a “Will”. Else like the biblical saying: “the thief comes only to steal and kill and destroy” John 10:10a.
The PNDC Law 111 must be struck intensely as the “shield and buckler” for the just in intestate succession process akin to Psalm 91:4 “He shall cover you with His feathers, and under His wings you shall take refuge; His truth shall be your shield and buckler.” All laws must never lose their savoury of biblical leaning. Dr. Martin Luther King, Jr. was right when he said “truth crushed to earth will rise again” and Dr. Nii Armah Josiah-Aryeh put it this way “truth buried shall surely rise.”
- Intestate Succession Act, 1985 PNDC Law 111, Section 10
Now to the crux of this article, I shall express my opinion in the various provisions of section 10 as follows:
Where the rules of succession under customary law applicable to a portion of the estate provide that the family of the intestate is entitled to a share in the estate
(a) that family is the family to which the intestate belonged for the purposes of succession in accordance with the customary law of the community of which the intestate was a member;
(b) in the case of an intestate who, being a member of two customary law communities belonged to two families for the purposes of succession, that family shall be the two families;
(c) in the case of an intestate who is not a member of a family, that family is the family with which the intestate was identified at the time of death or, failing that, to the families of the parents of the intestate or failing that to the Republic.
The typical Ghanaian family has four (4) links; maternal mother and father, and paternal mother and father. In choosing the family to which the intestate was a member, which of the four (4) are most suitable? It is a trite knowledge that customary communities in Ghana inherit maternally, paternally and both maternal and paternal. Which of the four (4) lineages has a sacrosanct qualification?
Question 1: If it is a maternal succession in accordance with the customary law of the community of which the intestate was a member, will it be the intestate maternal mother’s lineage or maternal father’s lineage or both?
Question 2: To what extent does the customary law of the community apply if it is the maternal mother’s lineage, with the exception of the intestate mother, what is the definition of the maternal family and who qualify in the share of the estate?
Question 3: If it is a paternal succession in accordance with the customary law of the community of which the intestate was a member, will it be the intestate paternal father’s lineage or paternal mother’s lineage or both?
Question 4: To what extent does the customary law of the community apply if it is the paternal father’s lineage, with the exception of the intestate father, what is the definition of the paternal family and who qualify in the share of the estate?
The vagueness of the provision in section 10(a) is a recipe for confusion and an unwarranted community quarrel. The provision does not bring finality to the exact family members who qualify for the purpose of the succession.
In the event that the customary law of the community of which the intestate was a member belonged to two families for the purposes of succession, that family shall be the two families. In this instance, how far must the sharing go? The open ended nature of the family system does not ensure specificity of who necessarily qualified or unqualified? Putting the two families together, which one takes precedence over the other?
The vagueness of the provision in section 10(b) is a recipe for confusion and an unwarranted community quarrel. The provision does not bring finality to the exact families on both sides who qualify for the purpose of the succession.
Rationally, it is not possible for a Ghanaian not to be a member of any family unless membership of a family is aptly defined and strictly adhered to. Yes! there are descriptions that qualify one to be a member of a family; not only by blood relations but by fulfilling laid down obligations of membership. In such instances, one may usually not enjoy welfare benefits of the family but that stricto sensu does not negate the blood lineage which disqualifies one as not been a member of a family.
Also in the case where the family by which the intestate was identified at the time of death maybe friends, does that qualify the friends to have succession of the intestate? Where this option fails, the law provides that succession be given to the families of the parents of the intestate. Again my worry suffice here where mention of parents families are alluded to. How are the families of the parents of the intestate determined by the law? What is the size of the estate and how reasonable can it be apportioned to be meaningful to a beneficiary?
Furthermore, the last option in section 10(c) which provides that the Republic may be an optional beneficiary of an intestate maybe farfetched considering the extended Ghanaian family system. The Republic as an optional beneficiary may manifest in the advent of a winding dispute among the intestate family where there are no parents, children, spouse and customary successor.
In conclusion, it is my firm conviction that the law must categorically in PNDC Law 111, section 10 spell out who qualify as an intestate family. My proposal is that these categories of people must strictly and only be recognised as the family. They are parents, recognisable children, and uterine siblings. The Republic becomes the last option in the absence of the three (3) categories of family mention. This can bring finality to any situation under section 10 of the PNDC Law 111.