The mindset of the average Ghanaian citizen with respect to the making of a will is such that, people ordinarily want to acquire a certain extent of assets before they consider the inevitable question of distributing the acquired assets upon their demise. Usually, the question of how properties lawfully acquired by an individual are distributed is irrelevant to people, it only becomes relevant once they are close to their deathbeds.
Contrary to the behavioural pattern of individuals on the subject matter, the safer and more appropriate approach is to make a will as early as legally permissible to prevent disputes and controversies in the unlikely event of death. The most interesting creation of the law is such that a valid will may have a residuary clause.
This means that once an individual makes a will as early as legally permissible, there can be a clause to regulate how properties acquired after the making of the testament are determined. Simply put, the law makes it possible for a person to make provisions in a will to distribute assets which will be acquired much later than the date of the making of the testament. Where there are no provisions for specific properties in the will of a Testator, those properties shall fall into intestacy. That being said, this article seeks to outline the many legal creations by the laws governing the making of testamentary documents which are advantageous to individuals and urge individuals to consider putting their houses in order before it becomes too late or too controversial to do so.
Laws governing wills
The Constitution 1992 of Ghana being the supreme law of Ghana provides under Article 11 the sources of laws in Ghana. This includes the Constitution, enactments made by or under the authority of Parliament, orders or rules, the existing law and the common law.
The Constitution reasonably contemplates that certain persons may need provisions to be made for them irrespective of the fact that their dependents made such provisions. The constitution safeguards property rights of spouses such that Article 22 provides that “a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will”. Apart from the parent provision on wills by the Constitution 1992, the more specific legislation governing wills is the Wills Act.
The Wills Act is the statute that is duly enacted under the authority of parliament to regulate the making of testaments and all incidental requirements. By virtue of Article 11 of the Constitution 1992, the common law and case law in the form of judicial precedents are also applicable to the regulation of the subject matter where necessary.
What is a will?
A will is defined by the Wills Act itself under section 18 to include a codicil and any other testamentary instrument. A will essentially, is a written document by a testator making provisions for the distribution or administration of his or her self-acquired properties and which takes effect only after the death of the testator.
A will is also a declaration in the prescribed manner, of the intention of the person making it with regard to the matters which he or she wishes to effect upon or after the death of the person making it. The person who makes a will is called the testator, the person’s properties are devised to be known as the beneficiaries, the persons carrying out the intentions of the testator are referred to as named executors and the will is required to be made in the presence of witnesses. It is worthy to note that a will can only take effect over properties the Testator can have legal or equitable rights, the ownership of the properties should not be questionable since a Testator can only distribute properties he or she can lawfully exercise control over.
Essential validity of a will
The first validity requirement of a will is that it must conform to the established legal principles, a testamentary document which falls short of the standard legal requirements shall not be given any legal effect and it shall be rendered void. Section 1 of the Wills Act provides for the power to make a will. A person having the capacity to make a will is a prerequisite to the legal validity of the will. The Act requires that the person making the will must be eighteen (18) years of age or above and in writing make a will to dispose of his or her self-acquired properties. On the issue of capacity, the law makes exceptions to underprivileged circumstances for privileged wills to be made.
The Wills Act provides under Section 6 that a member of the Armed Forces of whatever age may while engaged in an active service make a will. The phrase “active service” for the avoidance of doubt has been defined by Section 114 of the Armed Forces Act, 1962 (Act 105) as amended to mean, service in operation against an enemy or in a foreign country in operations for the protection of life or property, service in operation for the preservation of public order, service for the purpose of relief in the case of emergency and service for any other purpose appearing to the President to be expedient. Pursuant to Section 6 of the Wills Act, privileged wills may be made in three forms, where the will is in written form, with the material provisions and signature being in the handwriting of the testator, there is no need for attestation.
Secondly, where the will is written, regardless of whether the Testator personally wrote it or otherwise, there must be one attesting witness and finally, where the will is made orally, it must be before two witnesses. Privileged wills made in the proper form are valid and binding until expressly revoked or varied by the Testator.
The Wills Act provides under Section 2 the acceptable legal principles a testator must deploy to execute a will. A will is not valid unless it is in writing and signed by the Testator or by any other person subject to the directions of the Testator. The Testator may either sign or thumbprint in the presence of two (2) or more witnesses present at the same time. The signature or thumbprint shall be made underneath all dispositions. In the event that the testator is blind or illiterate, the law requires that a person deemed competent carefully reads over and explains the contents of the will to the Testator in a language the Testator understands before execution.
The competent person shall declare in writing that the document was read and explained to the understanding of the Testator and that the Testator understood the will before executing it. The Court shall not grant probate, or in simple terms, give effect to the will if all these requirements have not been complied with. The old position of the law determined by the Supreme Court of Ghana in the case of Otoo (n0.2) & Ors v Otoo (no.2) & Ors held that by the Illiterates Protection Act, 1912 (Cap 262) and Order 66 Rule 19 of C.I. 47, a will shall be declared void where a jurat does not appear on the face of the will prepared by an illiterate person.
However, there is a new position of the law governing jurats in the case of Sodzedo Akuteye, Agnes Akuteye and Afi Akuteye v Adjoa Nyakoah, Tetteh Akuteye and Ebenezer Akuteye where the Court held that the presence of a jurat only creates a rebuttable presumption and the mere absence of the jurat cannot per se vitiate the deed of an illiterate person without any tangible proof that he or she did not understand the contents of the deed and thus Section 3 of Cap 262 is only a partial shield. The Supreme Court held further that the issue as to whether or not an illiterate person fully understood and appreciated the contents of a document before executing the same is a question of fact to be determined by the evidence on record. Wood CJ as she then was, stated in the case of Duodu and Others v Adomako and Adomako on page 216 as follows:” …the courts must not make a fetish of the presence or otherwise of a jurat on executed documents.
To hold otherwise, without a single exception, is to open the floodgates of stark injustice. Admittedly, the presence of a jurat may be presumptive of the facts alleged in the document. But that presumption is rebuttable, it is not conclusive. The clear object of Cap 262 is to protect illiterates for whom a document was made against unscrupulous opponents; those who may want to take advantage of their illiteracy to bind them to documents detrimental to their interests. At the same time, Cap 262 cannot and must not be permitted to be used as a subterfuge or cloak by illiterates against innocent persons. Notwithstanding the absence of a jurat, the illiterate person who fully appreciates the full contents of the freely executed document, but feigns ignorance so as to escape legal responsibilities, will not obtain any reliefs…”.
Despite the fact that certain transactions carried out by blind or illiterate individuals have been held to be valid and binding even in the absence of a jurat, it is not automatic for the Courts to give effect to a will executed by an illiterate in the absence of a jurat. The position of the law is that the Court shall make such considerations on a case-by-case basis guided by the context of the surrounding circumstances. This means there is still a possibility for wills without a jurat to be declared void by the Courts.
Therefore, it is still advisable for wills executed on behalf of blind or illiterate persons to be accompanied by a jurat for a more conclusive effect. Also, vitiating factors such as duress, undue influence, fraud, and illegality shall render a will void.
The scope of properties a Testator can dispose of must either be properties acquired by the Testator, properties to which the Testator will be entitled at the time of death or properties to which the Testator may be entitled after death. A person suffering from insanity or infirmity of mind so as to be incapable of understanding the nature and effect of the document is incapable of making a will according to Section 1(2) of the Wills Act.
Characteristics of a will
A will takes effect only after the death of the Testator. This is because once the Testator is still alive, the document simply represents an expression of the Testator’s intentions. The testator is still legally required to have ownership and possession of all the properties, these ownership rights may only be transferred when the Testator is dead and statutory requirements have been complied with to transfer legal authority to the beneficiaries under the will.
A will is also ambulatory in nature. This means that a will possesses the quality to be changed or revoked by the Testator once still alive. Section 9 of the Wills Act provides for the revocation of a will.
A will may be revoked by tearing or any other physical destruction by the Testator or by any other person in their presence and by the direction of the Testator with the intention of revoking it.
A will may also be revoked by a written declaration of intention to revoke, executed in the same manner as a will. A will can also be revoked by the execution of another will which is expressed to revoke the previous will. The destruction of a will does not revoke that will where the Testator destroyed the will by virtue of fraud, duress or undue influence. Revocation of a will requires that the physical act of destroying the testament must be present together with the intention to revoke the same.
This further outlines the fact that individuals should be mandated to make wills as early as permissible because the law affords them the opportunity to revoke the will or even alter the will. It is not as if once a will is made, it can never be revoked or altered, the law provides flexible solutions and even makes it possible for a person to revive a revoked will.
Again, wills are said to be unitary in nature. A will is the collection of all unrevoked testamentary writings, where there is more than one unrevoked will, all of them shall be considered as one with the most recent will determining the differences between the wills.
Essential statutory creations
Given the controversial events that ordinarily transpire between individuals or families during the death of a Testator, the drafters of the Wills Act thought it wise to make a provision under Section 11 for the custody of wills. A person may deposit for safe custody in the High Court the will of that person sealed up under the seal of that person and the seal of the Court.
According to the parliamentary debates on the section, this provision is intended to clothe the will with adequate believability and acceptance in the eyes of the reasonable person.
With recourse to Article 22(1) of the constitution, the Wills Act makes provisions for dependants. If, on an application made, not later than three years from the date on which probate of the will is granted, the High Court is of the opinion that a Testator has not made reasonable provisions whether in life or by will for the maintenance of a father, mother, spouse or child under eighteen (18) years of age and substantive hardship will be caused, the Court taking into account all relevant circumstances, despite the provisions of the will, make reasonable provision for the needs of the father, mother, spouse or child out of the estate of the deceased.
Although it is factual that there is no obligation for the Testator to leave anything for his family and there is also no presumption that anyone is to be a beneficiary except those named or mentioned in the will, the law delineates that certain classes of persons are within the reasonable contemplation of a Testator during the making of the will. In the seminal case of Humphrey Bonsu & Anor v Quaynor & Ors, the Testator did not make provisions in his will for his spouse, student child and his crippled and mentally retarded child who were well over the age of eighteen (18) and an action was instituted under Section 13. The Court held that the language used in Section 13 was clear on the fact that the child had to be below the age of eighteen (18). Thus, the intention of the lawmaker was that the natural age should prevail and for that reason, the provision will be enforced no matter how harsh it might be. Twumasi JA dissented that “The claim provided the clearest archetype of the moral dimension in the exercise of judicial discretion.
This plaintiff suffered mental and physical disability from birth yet strict compliance with the letter of section 13 (1) of the Wills Act disqualifies him from applying for a reasonable provision because the statute covers children under 18 years of age which he had passed at the date of the will. With regard to the question of the applicability of the provisions of Section 13 (1) to the 3rd Plaintiff, I have found the construction placed on that subsection to be too draconian and harsh. Clearly, the Court adopted the literal approach of statutory construction but I conceive it to be a solemn duty of the Court to construe a statute in such a way as would accord with common sense and justice”.
For the avoidance of doubt, the case of Akua Marfoa v Margaret Akosua Agyeiwaa provided requirements an applicant/dependant must satisfy under Section 13. That the applicant is a dependant on the Testator, that the application has been brought within three (3) years after the granting of the probate of the will, that the testator failed, either during his lifetime, or by his will, to make reasonable provision for the applicant, that the applicant is suffering, or likely to suffer hardship and that having regard to all the relevant circumstances the applicant is entitled to support out of the estate of the Testator. The Courts have demonstrated that, once the statutory requirements are clearly met, they shall give effect to Section 13 of the Wills Act.
Conclusion
In the absence of a will, it becomes delicate and uncertain for parents, spouses, children, extended family, loved ones, etc of the deceased person to reasonably benefit from the estate of an individual. In Ghana, properties of a dead person in the absence of a will shall fall into intestacy and the distribution will be governed by laws governing intestacy which will undoubtedly be contrary to the wishes of the deceased.
For the sake of an individual having certainty and complete control over the governance of his or her estate, we need to do away with the thinking that the making of a testamentary document only becomes necessary when a person attains some superfluous wealth or when the individual is close to death. Making a will as early as legally permissible preserves the real intentions of the Testator. Thus, preventing the undesirable possibility that the properties of a person will be distributed contrary to the true intentions of the Testator due to the refusal to make a will.
A will also distributes properties in the death of the Testator effectively and conclusively; the norm is that controversies shall arise in the death of a person, leading to injuring existing relationships between spouses, parents, siblings, external family members, business partners, etc The Bible in the book of Hebrews 9:16-18 state that “in the case of a will, it is necessary to prove the death of the one who made it, because a will is in force only when somebody has died; it never takes effect while the one who made it is living. This is why even the first covenant was not put into effect without blood”. The status quo therefore ought to change, the uncertainty principle of death should prompt us all to consider making a will as early as legally permissible.
Written by:
Derick Addo-Aikins Esq,
Edfields Attorneys.
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