My uncle, Charles was an intelligent and successful man, wealthy in his own right. But with success came certain indiscretions: he fathered six children with three different women, despite being legally married.
On several occasions, my father, would tease him about his "baby mama" drama and urge him to write a Will. "No one wants to deal with that mess after you're gone," my father would say. But Uncle Nii Boi always brushed it off, joking that he would sell off all his properties and spend the money before death caught up with him.
My uncle and I were very close, and we could speak openly about anything. So, after I graduated from law school, I had a candid conversation with him about Wills; why it was important to have one, and what made him hesitant to prepare one. That discussion, along with similar conversations I had with others in his age group (40s and 70s), is what inspired this article. I came to realize that many Ghanaians hold deeply rooted and sometimes strange superstitions and misconceptions about Wills: who they're for, what they mean, and what they actually do.
Let's set the record straight.
What Is a Will?
Section 1 of the Wills Act, 1971 (Act 360), defines a Will as a written document by which a person, of or above the age of 18, can dispose of their property upon death. It also outlines the requirements for a valid will. For a Will to be valid, it must:
- Be in writing
- Be signed by the testator (the person making the Will) or by someone at their direction
- Be witnessed by at least two people who are present at the same time
- Be signed by the witnesses in the presence of the testator
- Be made when the testator is of sound and sober mind
Why Everyone Should Have a Will
When someone passes away without a Will, their estate is distributed according to the default laws of intestacy in their jurisdiction. These laws follow a fixed formula that may not reflect the individual's personal wishes, family dynamics, or unique circumstances. In Ghana for example, when someone dies intestate (without a Will) their estate is distributed under PNDC Law 111, which follows a rigid formula that may not reflect the deceased's true wishes. Here is why writing a Will is essential:
1. It Prevents Family Disputes
We've all seen families torn apart after a loved one dies. Bitter arguments arise over who gets what, a house, a car, a company. A Will gives clear direction and removes ambiguity.
2. It Respects Your Intentions
Only a Will guarantees that your property goes to the people you care about, in the proportions you choose.
3. It Protects Vulnerable Dependents
In many Ghanaian communities, widows and children are sometimes harassed or even evicted from the family home when the man dies. A Will ensures that your spouse and children are legally protected and secure.
4. It Simplifies Probate
A Will makes the process of administering your estate quicker and more straightforward, reducing stress for your loved ones.
5. It Avoids Customary Law Conflicts
Without a Will, customary law may come into play, especially in communities with strong matrilineal or patrilineal traditions. This can clash with statutory law and create tension.
What Goes into a Will?
In a Will, the testator can bequeath both moveable and immoveable property:
- Moveable property includes cars, appliances, clothes, jewelry, books, and money etc.
- Immoveable property includes land, buildings, and houses.
You can also appoint executors (people to carry out your wishes), guardians for minor children, and even include funeral instructions.
Who Can Draft a Will?
A person making a Will, known as the testator, can draft their own Will, or with the help of a lawyer. While it's legally permissible for anyone to write their own Will, doing so without legal guidance can lead to ambiguities or errors that might render the document invalid or open to challenge. Lawyers bring clarity, ensure compliance with legal formalities, and help structure the Will to reduce the likelihood of disputes. In Ghana, a Will needs to go to the Courts to be stamped and sealed which makes a Lawyers role in drafting the Will very crucial.
Where Should a Will Be Kept?
Once a Will is drafted and properly signed, it's crucial to store it safely and accessibly. Common options include keeping the original copy with a trusted lawyer, in a safe deposit box, or in a fireproof safe at home. Some jurisdictions, including Ghana, allow for the Will to be deposited with a court or government office for safekeeping. It's also important to inform a trusted family member or executor about the location of the Will so it can be found when needed.
How Do We Know it's the Final Will?
To be recognized as the final and valid testament, a Will must meet certain formal requirements: it typically must be in writing, signed by the testator, and witnessed according to local laws. If multiple Wills exist, the most recent one (by date) generally prevails, provided it was properly executed and there's no evidence of undue influence or lack of capacity and most importantly the previous Will is revoked in the most recent one. While registration of a Will is not mandatory in many jurisdictions, doing so if the option is available, can provide added legal certainty and help prevent disputes about authenticity.
Can a Court Change a Will If It's Unfair?
Generally, a person has the right to distribute their assets as they wish. However, if a Will is considered to be unfair, particularly if it excludes close family members or dependents such as spouse and children and parents, a court may intervene. Most legal systems allow certain individuals, such as spouses, children, or dependents, to challenge a Will on grounds like lack of provision, undue influence, or lack of capacity. If successful, the court can order a redistribution of the estate to ensure fair provision, even if it goes against the testator's expressed wishes.
Pursuant to Section 13(1) of the Wills Act, 1971 (Act 360), the High Court may make such provisions if the testator has failed to do so, and hardship would otherwise result. A notable case illustrating this principle is Akua Marfoa v. Margaret Akosua Agyeiwaa GHASC 84 (9 November 2016).
In this case, the Supreme Court emphasized that the High Court has the authority to make reasonable provision for dependents from the deceased's estate, even if the Will does not provide for them. The Court clarified that such intervention does not equate to rewriting the Will but is a necessary step to prevent hardship for those who were dependent on the deceased.
However, it's important to note that this power is not limitless. The High Court can only make such provisions if:
- The applicant is a dependent of the testator.
- The application is made within three years after the grant of probate.
- The testator failed to make reasonable provision for the applicant, either during their lifetime or by their Will.
- The applicant is suffering or likely to suffer hardship.
- Considering all relevant circumstances, the applicant is entitled to support from the estate.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
