Preparing for the Inevitable: The Importance of Drafting a Valid Will in Ghana

By: Jennifer Nsiah Sarkodie Esq,

Pupil, Zoe, Akyea & Co.
Edited by: Christine Opoku Onyinah & Emmanuel Kwaku Owusu-Asare

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

Death is inevitable—yet many people delay or neglect making a Will. A Will is a legal document setting out how a person’s property should be distributed after death.

A person who dies testate leaves a valid Will; a person who dies intestate dies without one.

One of the most common causes of family disputes over a deceased person’s estate is the absence of a Will. In such cases, the estate is distributed in accordance with Ghana’s Intestate Succession Law, 1985 (PNDCL 111).

This article explains why making a Will matters, the legal requirements for a valid Will in Ghana, the types of Wills, how Wills may be revoked and revived, and what it means to prove a Will in court.

Characteristics & Validity of a Will

A Will is a testamentary disposition; this means it has no legal effect until the testator’s death (i.e., it is ambulatory).

Subject to the law, a person may dispose of property as they see fit, provided the formal requirements are satisfied.

While anyone may draft their own Will, it is advisable to instruct a lawyer to assist you in drafting a will.

Who may make a Will?
Under the Wills Act, 1971 (Act 360), any person 18 years or older who is not suffering from insanity or infirmity of mind may make a Will.

The testator must understand the nature and effect of the Will at the time of execution as any Will (or provision) obtained by fraud, duress, or undue influence is void [1].

Formal execution
A valid Will must be in writing and signed by the testator (or by another person in the testator’s presence and at their direction).

The testator’s signature (including a mark or thumbprint, per s.46 of the Interpretation Act, 2009 (Act 792)) must be made or acknowledged 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 [1].

Beneficiary as witness
If a beneficiary acts as a witness to the Will, then there must be more than two witnesses; otherwise, the gift to that beneficiary is void and falls into the residue [2].

Types of Wills in Ghana

Ghanaian law recognises statutory and customary testamentary dispositions.

1) Statutory Testamentary Disposition

This includes Wills made under Act 360 and Armed Forces Wills.

Armed Forces Wills (s.6, Act 360): A member of the Armed Forces, whatever their age, while on active service, may make :

• A written will with no witnesses if the material provisions and signature of the person are in the testator’s handwriting;
• A written will which is witnessed by one person; or
• An oral will in the presence of two witnesses.

Such a Will remains valid even after the person leaves active service. It may be revoked by another Armed Forces Will or by the general revocation methods under the Act.

Illiterate or blind testators: Where the testator is blind or illiterate, a competent person must carefully read over and explain the contents before execution, and declare in writing on the Will that this was done and that the testator appeared to understand it. This is commonly called the jurat requirement [3].

In Duodu & Ors v. Adomako & Adomako [4], the Supreme Court held that the absence of a jurat does not automatically invalidate an otherwise valid Will; it raises a rebuttable presumption requiring evidence that the testator fully understood the Will.

2) Customary Testamentary Disposition (Samansiw)

Long before the Supreme Court Ordinance of the Gold Coast (31 March 1876), samansiw, an oral Will, was recognised under customary law. Section 19(3) of the Wills Act preserves the validity of oral testamentary dispositions made per customary law.

As outlined by Samuel Azu Crabbe in Law of Wills in Ghana, the essential requirements of a valid samansiw include:

• A voluntary declaration (not induced by fraud or duress);
• The subject property is self-acquired [5];
• The declaration is made in contemplation of imminent death (or the gift is to take effect after death) [6];
• The deceased was of age and sound mind; and
• The declaration was made in the presence of at least two responsible, disinterested witnesses (prudently including a family member) [7].
  
  

Revocation (and Revival) of Wills

Revocation
A Will may be revoked by:

• Physical destruction (e.g., tearing) by the testator, or by another person in the testator’s presence and at their direction, with the intention to revoke;
• A written declaration of intention to revoke, executed in the same manner as a Will; or
• Execution of a later Will that expressly revokes the prior Will (or revokes it to the extent of inconsistency if not expressly stated).

Destruction induced by fraud, undue influence, or mistake of fact or law does not effect a valid revocation.

Armed Forces Wills may likewise be revoked by a new Armed Forces Will or by the general methods above.

Proving a Will

After death, the validity of a Will may need to be established, commonly called “proving the Will.” There are two principal routes:

• Proof in Common Form: Used where the Will appears regular on its face and there is no dispute. The application for probate may be supported by affidavits and accompanying documents as required by the Court [9].
• Proof in Solemn Form: Used where the Will’s validity is contested. The executors issue a writ seeking a declaration that the Will is valid, or they may be sued by an interested party. In such proceedings, the executors are defendants and the challenger(s) are plaintiff(s) [10]. This is essentially a probate action.
  
  

Reasonable Provision for Parents, Spouse, and Children

Although the courts strive to give effect to the testator’s intentions, Section 13 of Act 360 permits the High Court, on application within three (3) years of the grant of probate, to order reasonable provision out of the estate for the testator’s parents, spouse, or children under 18, where the testator failed to make such provision and hardship would result. Orders may include lump sums, annuities, or limited interests in immovable property.

Practical Takeaways

• Make a Will early and keep it updated after major life events.
• Follow the formalities strictly; errors can void gifts or the entire Will.
• Use more than two witnesses if any witness is also a beneficiary.
• Special formats exist for Armed Forces personnel and for blind or illiterate testators (ensure the jurat).
• Customary oral Wills (samansiw) remain valid where the customary requirements are met.
• Consider dependent family members as courts may vary a Will to provide for them.
• While a lawyer is not legally required to draft a Will, professional drafting significantly reduces risk and cost for your estate.
  
  

Conclusion

Understanding Ghana’s law on Wills helps ensure your intentions are honoured, reduces the risk of family disputes, and streamlines estate administration. Poorly drafted or improperly executed Wills can be challenged, leading to delays and expense. For peace of mind, engage an estate-planning lawyer to ensure your Will is valid, clear, and enforceable—bearing in mind that a non-lawyer may also prepare a valid Will if all statutory requirements are satisfied.

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, p.480
[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)