Naked we came, naked we shall go; why make a will?

A news item on CNN recently caught my attention. It tells a story of a woman who was fortunate enough to pour her heart out to her mother, moments before her mother passed away in the hospital from Covid-19. The sad truth about this virus is that, those who die from it, die alone, away from family and loved ones. While I read the story, I was reminded of the response I usually get from people whenever I try to advise them of the need to make Wills with respect to their estate. Well, as is very common, one stated that it was not yet his time to die. Unfortunately, that is the mentality of many, when it comes to making Wills.

At the time of writing this piece, there had been over 42,000 confirmed deaths arising from the Covid-19. I wonder how many of the deceased persons knew for sure, that they would die at that very moment, and even if they did know, the question is, how many of them had made preparations for their deaths in terms of their souls, families as well as their property?

Christians, Muslims as well as Non-believers may disagree on many things, one thing which is for sure, and on which there is agreement is that, nobody knows when death will come pounding at their doors. This is why it is extremely important to make preparations while we still have the strength, energy and a sound mind to do so, especially for the people who are left behind and who will mostly be affected by our departure.  One way of ensuring that there is security and peace, even after our departure is by making Wills. The good thing about making Wills is that, a Will may be altered as many times as a person wishes and at any point in time, the Will may be revoked by the testator, as long as there is the intention to do so. This article is a brief exposition on the law governing testacy and intestacy.

A person may die either testate or intestate. A person dies testate if the person died leaving a valid will behind but a person dies intestate if the person dies without leaving a will behind, or a court of competent jurisdiction declares a will left behind as being invalid or void ab initio. In Ghana, there are laws that regulates the distribution of estates which fall under intestacy and those that fall under testacy.

According to the 9th edition of the Black’s Law Dictionary at page 1735, a Will is the legal expression of an individual’s wishes about the disposition of his or her property after death; especially, a document by which a person directs his or estate to be distributed upon death. By this, a will may be defined as the testamentary disposition of an individual’s estate after death.

In Ghana, any person of the age of eighteen (18) years or above is capable of making a will. The Wills Act, 1971 (Act 371) provides that a will is not valid unless it is in writing and signed by the testator or by any other person at the direction of the testator.

Where the will is signed by the testator himself, it shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time but where the will is signed by some other person at the direction of the testator, it shall be made by that person in the presence of the testator and two or more witnesses present at the same time. As long as the witnesses attest and sign the will in the presence of the testator, a form of attestation will not be necessary. The requirements of a Will have been given judicial blessings in the case of In re Okine (Decd.); Dodoo and Another v Okine and Others [2003-2005] 1 GLR 630.

The requirements for a valid will may be dispensed with in some exceptional circumstances. One of such exceptional circumstances is where a member of the Armed Forces in active service wishes to make a will. Section 6 of Act 360provides as follows:

“Despite a provision of this Act to the Contrary, a member of the Armed Forces of whatever age may, while engaged on active service, make a will in written and unattested form, if the material provisions and the signature are in the handwriting of the testator, or in written form, whether or not in the handwriting of the testator, and attested by one witness, or orally before two witnesses.”

It would be realized here that while on active service a member of the Armed Forces may even make a will orally, but such a will must necessarily be made before two witnesses.

It is a fact that apart from Armed Forces Wills, there is no other type of will or class of people who are absolved from the requirement of writing when it comes to the making of a valid will. This implies that any other Will made orally, or which does not comply with Section 2 of Act 360 may be deemed invalid.

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Once a Will is made, it ought to be deposited at the High Court until such a time when it would be read.

The Constitution entitles a spouse and a child to a provision from the estate of a person. This implies that in making a will, a testator ought to consider those provisions. Where the Will of a testator does not make any provision for a child for instance, that child may upon an application to the court request that provision is made for him or her from the estate of the deceased. The court would then consider certain factors such as the age of the child, as well as other important factors.

Apart from the formal Wills as contemplated by Act 360, it is recognized that Ghana is premised largely on customary law and indeed Article 11 of the Constitution acknowledges customary law as one of the sources of laws in Ghana. Therefore, customary Wills are still recognized by law and would be given effect, especially if it does not conflict with a written formal Will.

In the case of In re Armah (Decd.); Awotwi v Abadoo [1977] 2 GLR 375, the Court of Appeal defined a samansiw as a peculiar form of nuncupative will which was almost always made in contemplation of imminent death and could aptly be described as an “emergency will”. It stated that due to its emergency nature, no hard and fast rules should be laid down as to what forms the exercise of the right should take. The Court went further to intimate that it was desirable, that if practicable, the death bed declaration should be made in the presence of more than one person, but a samansiw should not fail simply because the declaration was not made in the presence of a plurality of persons. Provided the declarant was able to speak and was of sound disposing mind, a death bed declaration made by him in the presence of one or more credible witnesses should be held valid.

Apart from the In re Armah case on samansiw, the law on Customary Will, especially regarding the essentials needed for it to be valid, has undoubtedly gone through various stages. The case of Ankomah v City Investment Co. Ltd [2012] 2 SCGLR 1123 summarises the various stages. The honourable court stated as follows:

In Summey v Yohuno 1960 GLR 68, these were the essentials: 1) the disposition must be made in the presence of witnesses; 2) One such witness must be the customary successor of the testator; 3) There must be acceptance of the gift indicated by giving and receiving drinks. Thereafter, there is a long line of settled cases each of which modified the essentials, namely, Mahama Hausa v Baaku Hausa [1972] 2GLR 469 which dispensed with presence of an inheritable member of the donor’s family. In Prempeh v Agyepong [1993-94] 1GLR 225, there was further modification these terms: “Customary law is constantly changing especially in the area of nuncupative wills. The social and economic demands of the day have forced the pace. The ancient requirement regarding the kinship quality and plurality of witnesses, and the giving of aseda (thanks) to seal a legacy, have all suffered change. The courts in recent times have rejected or pruned very thinly these requirements, taking care not to throw away the baby with bath water, to use the celebrated expression. Thus the pristine foundations of Sarbah, Rattray and Ollenu have had to yield to three simple rules, namely self-acquired ownership in the testator, his sanity at the time of the declaration and attestation by credible, disinterested witnesses, two at least in normal circumstances, but one permissible in extreme exigencies. After the modification of the principles referred to above, these three essentials emerged: 1) The property must be self-acquired; 2) The testator must be sound in mind; 3) The declaration must be attested to by 2 credible disinterested witnesses.”

The above well scripted proposition by the Supreme Court on the development of the law on the essentials required for a Customary Will to be valid sums it up. It may be surmised from the proposition that unlike in the past, an oral Customary Will need not be declared on the deathbed. So long as the three requirements exist, such an oral Will would be deemed valid unless invalidated by some other means.

If a person fails to make a will which details how his or her estate is to be applied, that is, if a person dies intestate, the Intestate Succession Law, 1985 (PNDCL 111) directs how such an estate would be treated.

In distributing the estate in accordance with PNDCL 111, the law considers the child of the deceased, the spouse of the deceased, the parents of the deceased, as well as customary law of the deceased.

This implies that whether or not there was any intention to distribute the estate as such by the deceased, the law make such presumptions and distribute it as such.

According to PNDCL 111, where the intestate is survived by a spouse or by a child or both a spouse and a child, the spouse or the child or both of them, is or are entitled absolutely to the household chattels of the intestate.

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Where the estate includes only one house, the surviving spouse or the child or both of them is or are entitled to that house and where it devolves to both the spouse and the child, they shall hold it as tenants in common, but where the estate includes more than one house, the surviving spouse or child or both of them, shall determine which of those houses shall devolve to the spouse or the child or both of them and where it devolves to both the spouse and the child they shall hold the house as tenants in common.

It is important to state here that according to the law, where there is disagreement as to which of the houses devolves to the surviving spouse or child, or to both of them, the surviving spouse or child has, or both of them have, the exclusive right to choose any one of those houses but if the surviving spouse or child or both of them is or are unwilling or unable to make the choice the High Court shall, on application made to it by the administrator of the estate, determine which of those houses shall devolve to the surviving spouse or child or to both of them.

Apart from the existence of a house, which distribution has been taken care of already above, the law gives guidelines as to the sharing of the residue of the estate, if any.

Where the intestate is survived by a spouse and by a child, three-sixteenth of the residue of the estate would go to the surviving spouse, nine-sixteenth to the surviving child, one-eighth to the surviving parent and one-eighth in accordance with customary law. Where there is no surviving parent one-fourth of the residue of the estate shall devolve in accordance with customary law.

Furthermore, in the event that the intestate is survived by a spouse and not by a child, half of the residue would devolve on the surviving spouse, a quarter on the surviving parent and the last quarter in accordance with customary law. However, if there is no surviving parent, half of the residue would be distributed in accordance with customary law.

Another possible scenario given is that where the intestate is survived by a child and not by a spouse the surviving child would be entitled to three-quarters of the residue and of the remaining one-quarter, one-eighth would devolve on the surviving parent and one-eighth shall devolve in accordance with customary law. Just like in the previous cases, where there is no surviving parent the whole of the one-fourth shall devolve in accordance with customary law.

Where the intestate is survived by a parent and not by a child or spouse, three-fourths of the estate shall devolve to the surviving parent and the remaining one-fourth shall devolve in accordance with customary law. If the intestate is not survived by a spouse, a child or a parent the estate shall devolve in accordance with customary law.

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, then that family would be 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.

It is important to note that 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, but 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.

Undeniably, the law recognizes that there may be situations where customary law may not be applicable. For instance, if it is shown that the intestate did not belong to any customary law. In such a case, that portion of the residue shall devolve in equal shares to those beneficiaries otherwise entitled to share the residue under the law. Again, if those other beneficiaries otherwise entitled to share the residue are non-existent, the estate shall fall into escheat. This implies that the estate would devolve on the Republic of Ghana.

The above shows clearly the benefits of making a will and dying testate, and the consequences of not making a will and dying intestate. It is always important for a person to make preparations while they are in the position to do so. After all, we all came into the world with nothing and will definitely leave with nothing. However, we have the choice to determine how the things we acquired can be treated.

The Writer is a Lawyer.

 

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