Author: Barbara Ewoenam A. Kukah
Death is one of the few certainties in life. In light of this, it is understandable that people will want to make provision for how their self-acquired property should be distributed and used after their death. The law allows people to make wills to give legal backing to people’s wishes on what should happen after their death for continuity of their estate. This article provides a guide on the creation of wills in Ghana.
What Is a Will?
A will is a legal document in which a person (known as the testator), specifies how their property should be managed and distributed after their death. Some people leave instructions for their bodies, funerals and burial as well as for the care of their child(ren) in their will but the primary purpose of a will is to give instructions concerning the distribution of the testator’s property.
It is regulated by the Wills Act, 1971 (Act 360) and Order 66 of the High Court (Civil Procedure) Rules 2004 (C.I 47). Act 360 regulates the validity of a will (the manner in which it is to be made and the persons who have capacity to make a will) while Order 66 of CI 47 regulates the process of getting probate for a will.
What Should be the Contents of a Will?
“There is no doubt that each and every one has the unchallenged right to distribute his/her self-acquired property the way he/she wants subject to the provisions of section 13 (1) of Act 360 and article 22 (1) of the 1992 Constitution.” – Appau JSC, Marfoa v. Agyeiwaa (J4 42 of 2012) [2016] GHASC 84 (09 November 2016).
There are no limitations on what a person can write in their will. A person can bequeath any property in their will as long as the property lawfully belongs to them. Some properties that are commonly bequeathed in wills include land, buildings, farms, shares, cash, vehicles, royalties, jewellery, electronic equipment, books, furniture and clothing among others.
People also use their wills to give instructions concerning their burial, bodies, care of their children and general advice to their families.
A person is not accountable to anyone for how they choose to dispose of their property. In the case of Kofigah and Another Vrs Atanley and Another (J4 5 of 2019) [2020] GHASC 28 (22 January 2020), one of the reasons the testator’s children challenged his will was because of they felt some of the devises in the will could not have been made by their late father as they knew him well. The Supreme Court speaking through Pwamang JSC said in response “That cannot be a legal ground to challenge the validity of a Will. A testator is at liberty to give out her self acquired property in the manner she pleases without meeting the expectations of any person. As Knight Bruce said in Bird v Luckie (1850) 68 ER 373:
“No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A testator is permitted to be capricious and improvident, and is more at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions. Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.”
Wills can incorporate other documents. However, those documents must be in existence at the time the will is being made and must be sufficiently identified in the will.
As long as the will was made in accordance with law, a testator can bequeath their property to anyone and in any manner they please and the courts will give effect to it whether or not they agree with its contents.
When Does a Will Come Into Effect?
A will only comes into effect upon the death of the testator. Justice Azu Crabbe in his book, Law of Wills in Ghana, at page 175, paragraph three wrote:
“It is now well established that a will made by a Ghanaian becomes operative and no more, as from the date of the testator’s death. His intention expressed in the will has no legal effect, until the will is admitted to probate”.
This means that if you make a will now, you are not restricted from using the property named in the will during your lifetime. You can dispose of the property by gifting or selling it off if you so wish. This can all be done without the consent or permission of the person listed in the will as beneficiaries.
You can also make a new will or amend the original one through the use of codicils. You can even revoke the will completely because as a testator, you are not bound by a will which does not yet have legal effect.
Requirements Of A Valid Will
When a testator dies, any will made by the testator has to be submitted to the court in order for probate to be granted. Before the court grants probate, it has to satisfy itself that the will is valid and complies with the requirements of the Wills Act. Formal validity relates to the form prescribed by the law for the execution and attestation of the will while essential validity is concerned with the mental element of the testator – whether the will was voluntarily made by a willing and capable person.
Written form
The law requires that wills must be in writing. but does not specify the form the writing should take (whether handwritten or typed and printed). However, a will cannot be valid unless it is written. The only exception to this rule is when the testator is in the armed forces. Under section 6 of the Wills Act, any member of the Armed Forces who is in active service may make a will in any of the following forms:
a. written and unattested, if the material provisions and signature are in the handwriting of the testator;
b. written (whether or not in the handwriting of the testator) and attested by one witness;
c. orally before two witnesses.
Such members of the armed forces are not required to reach the statutory age of eighteen in order to make a will under the section. In addition, the will continues to remain valid even after the person leaves the Armed Forces.
Execution
After the intended will has been put in writing, section 6 of the Wills Act requires that the will be signed by the testator. In the event that the testator cannot sign the will due to sickness or some other reason, the testator must appoint someone else to sign the will for the testator. This must however be done in the presence of the testator. For testators who are blind or illiterate, someone can read and explain the document to them so that they can sign (or thumbprint) it. The person must also declare in writing that they read and explained the document to the testator who seemed to perfectly understand the contents of the document before signing.
The signature of the testator signifies an end to the will. Any other provision or direction that comes after the signature of the testator will have no legal effect.
Witnesses
Section 2 of the Wills Act makes it mandatory for a testator to sign or acknowledge his signature in the presence of two witnesses. Where someone signs on behalf of the testator, the person must sign in the presence of the testator and the witnesses. The witnesses shall then attest and sign the will in the presence of the testator. The witnesses must be adults who are capable of entering into a contract. People who are named as beneficiaries in a will cannot act as witnesses. The only time a beneficiary can act as a witness is when there are two other non-beneficiary witnesses, or when the beneficiary is the testator’s creditor and the will directs that the debt be paid to the creditor. The witnesses are not required to see or know the contents of the will. What is necessary is that they see the testator signing the will or have him acknowledge his signature.
Essential Validity
Even when a will is in writing and has been properly executed by the testator in the presence of two attesting witnesses, it will not be valid unless the testator is capable of making the will, intended to make a will, and knew and understood what he was doing when making the will. Thus while formal validity deals with the document and the form it takes, essential validity deals with the person making the will.
For a will to have essential validity in Ghana, the testator must be at least eighteen (18) years old, must have the intention of making the will (animus testandi). If the testator is insane or has any infirmity of mind which prevents the testator from understanding the nature or effect of the will it will be invalid. In the same way, if the testator signs the will as result of fraud, undue influence, or duress, it will be invalid.
The requirements for the validity of a will can be summarised by the words of Pwamang JSC in the case of Kofigah and Another Vrs Atanley and Another (J4 5 of 2019) [2020] as follows:
“The settled position is that, in such a case the proponents of the Will have the burden to satisfy the court that the document presented as the Will and Testament of the deceased was freely made by her and was duly attested to by two witnesses who were present at the same time. The proponents are further to satisfy the court that the testator at the time she executed the Will was corpus mentis not suffering from any impairment of mind.”
Executors
These are the people who carry out the instructions given in a will and ensure that the will is given effect. They must be at least twenty-one years old. You need at least one but many people choose to name two executors in the will. It is advisable to select trustworthy people who will be willing to act as executors.
In the case of b Adamson ((1875) LR 3 P&D 253) the court defined the duties of an executor as follows:
a. To collect in the assets of the testator (deceased);
b. To pay his funeral expenses and (just) debts; and
c. To discharge the legacies.
Even though the usual practice is to expressly name executors in a will, in some circumstances, a testator may impose on someone the duty of an executor without expressly naming the person as an executor. This is known as appointment according to the tenure of the will.
Not every person who is appointed as an executor may be willing to accept the appointment. If an executor renounces or fails to take probate, the other executor(s) may go ahead to apply for probate. In the event that there is no other executor available, any person who is interested in the estate may apply for letters of administration with will annexed.
Residual clause
Sometimes a person may go on to acquire more properties after making a will. In other instances, a testator may fail to mention and make provision for all self-acquired properties when making a will. In both cases, when the person dies and the will takes effect, some of the testator’s property will not have any devisee in the will. Such properties are said to have fallen into residue. Letters of administration will have to be applied in respect of such residual (also referred to as residuary) property because that part of the estate has fallen into intestacy.
To prevent this from happening, it is advisable to have a residual clause (also called a residuary clause). This clause acts as a safety net that makes provision for all property currently owned or to be later acquired by the testator that have not been specifically mentioned in the will.
Circumstances In Which a Will Is Not Given Full Effect
The will of a deceased person is respected as much as possible. The courts do not concern themselves with the contents of a will but rather, whether it was validly made or not. In the case of Arthur (Deceased) Abakah and Another v. Attah-Hagan and Another [1972] 1 GLR 435, Archer JA (as he then was) said:
“What should be borne in mind is that whenever a will is granted, the court is not giving its blessing and support to all the contents of the will. The court is only expressing its satisfaction that the will has been validly executed and that the named executors are at liberty to administer the estate. The Court should be extraordinarily slow in interfering with the will of a deceased person because the will constitutes hallowed ground and no one should tread upon it. If the Court decides to interfere, it does not expunge anything from the will. If it decides to omit anything on the well-known grounds, the omission is made in the probate and not in the will itself. For instance, the court will exclude from a will any words introduced into the will by mistake without the instructions or knowledge of the testator. The court may exclude from the probate and from registration words of atrocious, offensive or libellous character and it will exclude words of a blasphemous character.”
Inasmuch as the wishes of a deceased person are respected, this may not always happen due to certain circumstances including the ones listed below.
- Where the testator had debt
When a person dies leaving debt, the usual practice is to pay off the debts first and then distribute the remainder of the estate to the beneficiaries of the will. Thus happens even if the testator did not leave instructions for the payment of debts. If there is nothing left after the payment of debts, the estate is said to be insolvent. Even when beneficiaries receive property under the will after debts are paid, it may not necessarily be in the proportions or amounts stated by the testator.
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When the properties mentioned in the will do not belong to the testator
A will is used to distribute property legally owned by a testator. Thus where a will purports to give property which was not owned by a testator, it will not be given full effect. This may happen when the testator attempts to give out property which the testator held in trust for another person, or held as a joint tenant with others, or where the property belonged to the testator but was disposed of by the testator before dying.
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Where the Testator does not make reasonable provision for a dependent
Under section 13(1) of the Wills Act, if a parent, spouse of child under the age of eighteen was dependent on a testator who dies without making reasonable provision for such a person, the person can apply to the High Court within three years of the grant of probate asking for provision to be made for the person from the deceased’s estate.
The people who can make this application are the father, mother, spouse or child under 18 years of age of the testator. The High Court will review all relevant circumstances and grant the application if the following can be proved:
a) that the Applicant is a dependant on the testator
b) that the application has been brought within three years after the granting of the probate of the will
c) that the testator failed, either during his lifetime, or by his will, to make reasonable provision for the Appellant
d) that the Appellant is suffering, or likely to suffer hardship, and
e) that having regard to all the relevant circumstances the Appellant is entitled to support out of the estate of the testator.
In such a circumstance, it can be said that the will of the testator was not given full effect, especially if the grant of the application makes some changes to what beneficiaries of the will receive.
Revoking and Destroying Wills
For testators who want to revoke their wills, there are a number of ways to do it. The will can be physically destroyed, for example, by burning or tearing it in pieces. The testator can also make another will and in it state that the previous will has been revoked. It is actually common practice to state in each will that all prior wills have been revoked, whether or not any other will actually exists.
After the Will is Executed
After execution, the will is to be deposited at the registry of the High Court. If the testator dies without depositing the will in the High Court, section 12 of the Wills Act requires that any person who has the will or who discovers the will is required to deposit it in the High Court. This must be done within fourteen days of having knowledge of the testator’s death. A failure to do so is a crime which is punishable by law. Once this is done, when probate is being applied for, the Registrar will attach the will that has been deposited for the consideration of the court.
Probate
Probate is a legal document by which the court authorises the executors of an estate to deal with the instructions stated in a deceased person’s will in the manner prescribed by law. An application for probate may be made by the executors under order 66 of C.I 47. In Kofigah and Another Vrs Atanley and Another (J4 5 of 2019) [2020], Amegatcher JSC explained the process of applying for probate as follows:
“The role of the judge when a probate application comes before him is first to ensure that the Registrar has added to the application the Will deposited in court. Secondly, he is to examine the Will and satisfy himself that on the face of it all the formalities such as a testator’s signature, attestation clause, jurat clause (in the case of blind or illiterate persons) and two attesting witnesses have their signatures on the document. Thirdly, the judge is also to satisfy himself that there are no interlineations or other insertions which may arouse his suspicion. If on examining the Will deposited at the court he finds the document regular, then in the absence of any caveat or application seeking the Will to be proved in solemn form, probate must be granted by the court. In effect, if the signature of the testator was genuine and the evidence of the two attesting witnesses confirms this, then the requirements of the Wills Act, 1971, (Act 360) have been satisfied.”
When probate is granted, the executors can proceed to administer the estate according to the wishes of the deceased, thus bringing the process of preparing a will to a full circle.
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