By: Jennifer Nsiah Sarkodie Esq,
Pupil, Zoe, Akyea & Co.
Edited by: Christine Opoku Onyinah & Emmanuel Kwaku Owusu-Asare
Introduction
“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 died without leaving 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, 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.
Characteristics & Validity of a Will
A Will is a testamentary disposition that declares upon death an individual’s wishes regarding the distribution of their 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 to forestall a situation where one’s Will is declared invalid.
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]
Section 2 of the Wills Act outlines the requirements of a valid Will. First, a Will must be in writing and signed by either the testator or some other person 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.
It is important to note that where a beneficiary of a Will happens to be a witness, there must be more than two witnesses. If not, the property given to that beneficiary will be void [2] and will lapse into the residuary clause. This means that property would be deemed not passed on to 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
In Ghana, there are two main types of Wills: Wills made according to the statutory testamentary disposition and Wills made according to the customary testamentary disposition.
1. Statutory Testamentary Disposition
Here, a Will is made according to the Wills Act or made under the 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.
It is also important to say something about Wills made for testators who may be illiterate or blind. 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. [3]
The Supreme Court in Duodu & Ors v. Adomako & Adomako [4] 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 require proponents 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.
2. 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 the only form of testamentary disposition of estates in Ghana. 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.
Samuel Azu Crabbe, in his book, ‘Law of Wills in Ghana’, lays out the essential validity requirements for the validity of the samansiw as follows:
- The oral declaration by the deceased needs to be voluntary and not through fraud or duress,
- The subject property must be self-acquired [5]
- The oral declaration by the deceased was made in contemplation of imminent death [6] or that the beneficiary must benefit from the gift after the death of the donor.
- The deceased donor had reached the age of maturity and was not suffering from insanity or infirmity of the mind, and
- This oral declaration was made in the presence of at least two responsible witnesses with no interest in the property and, to be safe, including a family member as one of the witnesses. [7]
Under the customary testamentary disposition, the beneficiary is usually expected to perform the Aseda ceremony by giving drinks or other forms of customary ‘thank-you’ offering. It has been stated in the case of Abenyewa v. Marfo [8] by Taylor J. (As he then was) that the Aseda is not an essential requirement for the validity of a customary testamentary disposition.
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 order 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. [9]
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). [10] This essentially makes this a Probate action.
Reasonable Provision Regarding Testator’s Parents, Spouse or Children
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 fit not to make 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 the Probate of the testator/deceased.
Conclusion
Understanding the law on Wills is crucial for successfully distributing one’s estate. This article has examined the importance of drafting a Will during one’s lifetime. In particular, the article highlighted that the existence of Wills prevents unnecessary disputes between family members after one’s death. A poorly drafted Will can be challenged in court, leading to delays in the distribution of assets and legal expenses. A testator’s intention may also not be given effect by the courts if they conflict with the statute or fail to comply with the provisions of the law.
It is always advisable to consult an attorney who specializes in estate planning to ensure that your Will is legally valid and reflects your wishes, albeit it is still the law that a Will is not a legal document and a non-lawyer was at liberty to prepare one for himself or another person upon a request and shall be enforced by the courts as long as the aforementioned statutory and legal requirements are met.
FOOTNOTES
[1] Section 1, Wills Act 1971 (Act 360)
[2] Section 3 (4), Wills Act 1971, (Act 360)
[3] Section 2 (6), Wills Act 1971, (Act 360)
[4] [2012] 1 SCGLR 198
[5] Mahama Hausa v. Baako Hausa (1972) 2 GLR. 469, p480
[6] In re: Armah (Deceased) Awotwi v. Abadoo (1973) 1 GLR 393, p.412
[7] (Supra)
[8] (1972) 2 G.L.R; 153 p. 168
[9] Order 66 Rule 25 High Court (Civil Procedure) Rules, 2004 (C.I 47) (as amended)
[10] Order 66 Rule 28 High Court (Civil Procedure) Rules, 2004 (C.I 47) (as amended)