By: Angela Opoku-Bonsu ESQ,
Pupil, Zoe, Akyea & Co.
Angela is a barrister and solicitor of the Supreme Court of Ghana and a member of the Zoe, Akyea & Co. law firm. Her legal interests include but are not limited to Corporate and Commercial practice, Family Law and practice and Natural Resources law. She is also an LLM Candidate at the University of Ghana.
Edited by: Christine Opoku Onyinah & Emmanuel Kwaku Owusu-Asare
Introduction
Probate or Letters of Administration is the legal process or procedure of administering the estate of a deceased. It involves identifying and appraising the assets and liabilities of the deceased, paying off any debts, and distributing the remaining assets to beneficiaries. In Ghana, Probate or Letters of Administration is regulated by the Administration of Estate Act 1961 (Act 630), Order 66 of the High Court Civil Procedure Rules 2004 [C. I 47] and Intestate Succession Act 1985, PNDC Law 111. Another important legislation in Probate actions, especially in contentious ones, is the Wills Act, 1971 ( Act 360 ).
The grant of Probate or Letters of Administration authorizes Executors in a Will made by a deceased who died testate; and Administrators in the case of intestacy to commence distribution of an estate. The Probate or Letters of Administration process thus ensures that an estate is distributed in accordance with the wishes of a testator in the will and, where there is no will, in accordance with intestacy laws respectively.
While the administration of an estate could be fairly straightforward, same could be complex and time-consuming depending on certain circumstances. Consequently understanding the requirements and procedures of Probate and letters of administration in Ghana is essential for anyone involved.
This article will explore the requirements for obtaining Probate or Letters of Administration in Ghana; the article will also explore the role of the Court, the rights and responsibilities of the parties involved in the probate process, and the steps that must be taken to administer an estate per the applicable law in Ghana.
Distinguishing between Probate and Letters of Administration
Samuel Azu Crabbe, in Law of Wills in Ghana, defined Probate as a certificate granted in the High Court signifying that the Will of the Testator (one who makes a Will before his death) has been duly proved and is registered at the Registry of the Court and that the Executor proving the Will has the authority to administer the estate of the deceased. It is therefore of utmost importance for the court to satisfy itself that the document, the basis for the application of Probate by the Executors, is a testamentary instrument[i] made by the person whose estate is under administration. A person can only be entitled to the grant of Probate once a testamentary instrument is adequately executed and attested.
Letters of Administration (“LA”) on the other hand is an instrument that a Court grants to a person to deal with the estate of a person who died without leaving a valid Will. LA is therefore the legal authority given by a court to a person for the administration of the estate of a person who died intestate. LA as already stated is typically granted to Personal Representatives of the deceased ( comprising the surviving spouse, children of the deceased and or the customary successor).
LA may also be granted where a person who died testate but did not appoint an Executor in his Will. Where a deceased died testate but the named Executors either renounced Probate or failed to prove the Will, or died before they could carry out the distribution or administration, court may be called upon by an application to issue an LA but with Will annexed.
Which Court is ceased with Jurisdiction for the grant of Probate or LA in Ghana?
In Ghana, the court’s jurisdiction to grant Probate or Letters of Administration is usually where the deceased had a fixed place of abode at the time of death. Accordingly, an application for Probate or Letters of Administration may be made only to the court within the jurisdiction where the deceased had a fixed place of abode at the time of death (Order 66(1), CI.47). The law allows for the application to be made to any High Court, Circuit Court and District Court within the jurisdiction; albeit depending on the estate value of the deceased.
Meanwhile, where a person dies within or outside the country without a fixed place of abode in the country, the court in the area where any property of the deceased may be found shall have jurisdiction for the purpose of granting Probate or LA in respect of the estate so long as the Rules or any other enactment allows. In situations where the deceased has property within the jurisdiction of more than one court, the application shall be made to any of the courts in respect of all the properties (Order 66, rule 1(3)). Notice of such an application shall be given to the Registrar of every court with jurisdiction in the areas where the property may be found.
Also relevant is that any caveat[ii] filed in the court shall be brought to the court’s notice before which the application is pending, which may stay the hearing of the application until the court is satisfied that no caveat has been filed in another court. A caveat is essentially a warning by an interested person who seeks to prevent the grant of Probate or LA to an applicant, on the grounds that they are rather entitled to the grant.
So by its very nature, the purpose of filing a caveat in an estate matter is to enable a party who claims an interest in the estate and intends to, or opposes the grant of probate or letters of administration on the ground that he was entitled to the grant rather than the party who applied, to serve a notice to challenge the application. This is statutorily provided for under Order 66 r 11(1) of CI 47 of 2004. Additionally, the filing of a caveat serves as a notice to the Probate court when it is considering an application for probate or letters of administration. It is a notice to the court, requesting that no grant be made until the caveatrix or caveator was heard. In practice, the filing of a caveat stays the action on issuing probate or letters of administration unless and until the party who filed the caveat has been heard on his challenge to the grant.
Who can apply for Probate?
Where a person dies leaving a Will (testate), the person entitled to the grant of Probate or Letters of Administration with Will annexed shall be determined in the following order:
- The executor(s) name in the Will.
- Any specific legatee (an individual who receives a portion of a testator’s estate), devisee, or any creditor or personal representative of any such person.
- Any legatee or devisee, whether residuary or specific, who claims to be entitled to the happening of any contingency.
- Any residuary legatee or devisee holding in trust for any other person.
- The ultimate residuary legatee or devisee where the Will does not dispose of the residue.
- Any person with no interest under the Will of the deceased but who would have been entitled to a grant under the deceased estate if the deceased had died intestate.[iii]
The named Executors usually make an application for Probate. However, where the named Executors are deceased or unwilling to apply for Probate or have renounced executorship or where the Will fails to name Executors, then any person with interest in the deceased’s estate may apply for Letters of Administration with will annexed.
Who can apply for Letters of Administration?
Section 77 of (Act 63)[iv] makes the surviving spouse or spouses, surviving child[v], surviving parents and the customary successor entitled to the grant of Letters of Administration. However, Order 66 rule 13 states that an application for LA may be made and granted to not more than four (4) persons in the following order of priority where the deceased died on or after 14th June 1985. The order of grant is as follows:
(a) any surviving spouse
(b) any surviving children
(c) any surviving parents and
(d) the customary successor of the deceased.[vi]
A person granted LA shall administer the estate in accordance with the provisions of the Intestate Succession Act, 1985, PNDCL.111. It must clearly be indicated that being granted a Probate or letters of administration does not necessarily make the Executor or the Administrator the owner or beneficiary of the estate. The Probate or LA is mainly to enable them to distribute the estate of the deceased to those entitled either under the Will or under statute; although it is still possible for an administrator to be a beneficiary of the estate at the same time.
When can one apply for Probate or Letters of Administration in Ghana?
An application for Letters of Administration or Probate may be made at any time after a person’s demise. An application shall be made to the court which has jurisdiction over the deceased’s last place of abode. And as stated above, depending on the value of the deceased’s property, an application may be made to either the High Court, Circuit Court or District or Magistrate Court.
Some important Steps in applying for Probate or Letters of Administration in Ghana?
- An application for Probate or LA is made by a Motion Ex parte with a supporting affidavit.
- The supporting affidavit shall depose to the identification/particulars of the deceased, the date of death, proof of death, the fixed place of abode of the deceased, whether or not the deceased was survived by a spouse or children, the names and ages of the children survived by the deceased and the estate’s value.
- The affidavit shall also state the applicant’s interest in the estate and his relationship with the deceased.
- Also, the Executors of a Will must provide the Testator’s last Will and fill out a set of statutory forms, i.e. the Oath of Executors and Affidavit of Witness, which the Applicant should complete and sign.
- In addition to the affidavits by the applicants, a declaration of movable and immovable properties of the deceased together with their values shall be filed by the applicants.[vii]
- A death or burial certificate or any evidence proving the deceased’s death shall be exhibited to the affidavit in support.
A person who fails to follow the legal process outlined in applying for Probate or LA and deals with the deceased’s property will be said to have intermeddled with the deceased’s property.
What is Intermeddling?
This is where a person takes possession of and distributes the estate of a deceased without the grant of Probate or LA. Intermeddling is therefore the unauthorized and improper involvement in the management of a deceased’s estate by a person not appointed as Executor or Personal Representative. This can include taking possession of assets, distributing property, or making decisions for an estate, including selling part of an estate or taking money from the bank accounts of a deceased. Experience has shown that some persons only go to court to apply for LA when they need to access money in the bank accounts of a deceased or they need to access pension funds of the deceased.
It must be stressed that, without a prior grant of Probate or LA, any dealing with the estate of a deceased including putting on their dresses or using their mobile phone, constitutes intermeddling.
A person said to have intermeddled with an estate is guilty of an offence and liable to a sentence upon conviction. It is important to note that a named Executor who fails to apply for Probate or LA within the period prescribed by law shall be guilty of the offence of intermeddling in addition to any other liability that person may incur. It is equally instructive to add that, until recently, intermeddling was seen as a quasi-criminal offence that could be commenced by an application in the civil courts. However, a recent decision by the Supreme Court has overturned that rule. The Supreme Court has now held that intermeddling is a substantive criminal offence which can only be initiated and prosecuted by the Attorney-General or any lawful agent.
What are the everyday challenges of the Probate or LA process in Ghana?
Probate or LA process may give rise to some challenges for a variety of reasons.
- Contesting the validity of a Will: when a beneficiary or family member argues that the Testator was not of sound mind or that they were unduly influenced.
- Disputes over the distribution of assets: when beneficiaries or family members are not agreeable and need clarification on how the estate should be distributed. This can happen if there are ambiguities or inconsistencies in the Will or disagreements over the Testator’s intentions, which may result in a legal dispute.
- Executors or Personal Representative disputes: Disputes may arise when multiple Executors or Personal Representatives attend to the process of estate administration.
- Delays in the Probate or LA process: The probate or LA process can be lengthy and complex. This is the case where a caveat is filed by a person claiming an interest in an estate or where there is a dispute as to person/s entitled to a grant of LA and delays can be frustrating for beneficiaries and family members.
- Liabilities of an Estate: If the deceased had outstanding debts, creditors might assert a claim to the estate. This can complicate the distribution of the estate and lead to disputes between beneficiaries and creditors.
It is worth noting that consulting a lawyer helps to smoothly navigate the probate process thus minimizing the likelihood of disputes.
Options for resolving disputes in the Probate or LA Process in Ghana
There are several options for resolving disputes related to Probate or LA process. They include:
- Mediation: Mediation is a non-binding process where a neutral third party assists the parties in reaching a mutually agreeable resolution. Mediation can be less formal and less costly than litigation and help preserve relationships.
- Arbitration: Arbitration is a binding process where a neutral third party decides on the dispute. Arbitration is less formal than litigation but more costly. However, an award under arbitration is final and binding on all the parties.
- Litigation: Litigation involves the resolution of the dispute by a judge. Litigation could be time-consuming but may be necessary where parties fail to amicably resolve their differences. Note that, the best option for resolving a Probate or LA dispute will depend on the case’s specific circumstances. Seeking legal advice from a qualified attorney specializing in Probate and Estate Administration can help identify the best option for resolving disputes promptly and cost-effectively.
Conclusion.
The grant of Probate or LA is a crucial aspect of Estate administration. It is thus essential to have a well-drafted Will that accurately reflects the Testator’s wishes.
Understanding the legal principles and requirements related to Probate or LA in Ghana is thus the key to ensuring sound administration of the estate. It is equally instructive to state that in an application for the grant of Probate or LA, the sole or main issue for determination is who is entitled to the grant. Where one or an interested person wishes to raise issues about the validity of a Will or about a competing interest in the estate, then the proper procedure is to issue a writ in a fresh action for those matters to be determined outside the Probate or LA applications.
FOOTNOTES
[i] Testamentary instrument is any document or any paper, written or made only to take effect at the death of the maker and to be revocable during his lifetime.
[ii] Caveat is a notice of warning filed by a person interested in the estate of a deceased person and addressed to the Registrar of the court with jurisdiction over the last place of abode of the deceased instructing the Registrar that the court shall take no step in the issuance of a Probate or L/A to any other person unless the caveator is heard. Order 66 rule 11of the High Court (Civil Procedure) Rules, 2004 (C.I 47).
[iii] Order 66 rule 12 of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
[iv] Administration of Estate Act 1961, Act 63.
[v] Wills Act 1971, Act 360. Section 18 defines child” to includes a person adopted under any enactment for the time being in force relating to adoption, any person recognised by the person in question to be his child or to whom he stands in loco parentis, and in the case of a Ghanaian, includes also any person recognised by customary law to be the child of such person.
[vi] In re Asante (Dec’d) Owusu v Asante [1993-1994] GLR 271
[vii] Order 66 rule 9 (3) of High Court (Civil Procedure) Rules, 2004 (C.I 47)