1 Roe Fae kee RSE Sef Pew ER ey i, ‘THE LEGAL SITUATION ON INTESTATE SUCCESSION BEFORE 1985 ‘Through out the history of Ghana, from the colonial period up to and since independence, there have been four main systems of rules and laws which govern the inheritance of property when a person dies without leaving a will. ‘The rules which would be applied depended on whether the person was married under the Marriage Ordinance (Cap 127) or was a Moslem whose marriage was registered under the Marriage of Mohammedans Ordinance (CAP 129), or came from a community which used the matrilineal or patrilineal system of inheritance. The law on intestate succession appeared to be overtaken by changes in the Ghanaian family unit of husband, wife and children rather than the wider unit. ‘At customary law, there was very little protection for the surviving spous: Neither spouse had a right to the property of the other. Children in a matrilineal system had no more than a right to maintenance by their father's customary successor and a right to residence in their father’s house subject to good behaviour.” The provision of the Marriage Ordinance provided some protection for the surviving spouse and children of an intestate beyond customary law but the Provisions were discriminatory as a widower got more of his deceased wife's property than a widow got of her deceased husband's property. ‘The registration provisions of the Marriage of Mohammedans Ordinance were probably not known to many Moslems and therefore the Islamic rules of succession could not be applied, ‘The present position of the law since 1985: The Government of Ghana in1985 passed the Intestate Succession Law (PNDCL 111) with a view to removing the anomalies in the existing laws relating to intestate succession and to provide a uniform law that will be applicable throughout the country irrespective of whether the deceased comes from a patrilineal or matrilineal community and the type of marriage contracted.‘The provisions of the law are aimed at giving a larger portion of the deceased's estate to his spouse and children than was the case before the law. ‘They also removed the discrimination between succession by widows and widowers which existed under Cap.127, The same method of distribution will apply whether the deceased isa deceased man or woman. Since its passage in 1985, the Intestate Succession Law hasbeen tested by the law courts for interpretation of some of its provisions, application of the law to various beneficiaries and properties. Within that time there have been challenges to application of the law as it relates to movable and immovable property, children ~ biological and adopted, even among biological children as it relates to very young and old children, and between spouses’. It has brought to the fore the need to amend the law for smooth application. In 1991, PNDC Law 111 amendment 264 was passed to address some of the challenges outlined. What is intestate succession? What do we mean when we say somebody has died intestate? Any person who dies without leaving a will or some other instructions, whether written or oral as to how the property he has left behind should be dealt with or to whom this property should be left, is said to have died intestate. How is a person's property distributed when he dies intestate? When a wife or husband dies intestate all the things in the house in which they live, together with the house and a car go io the surviving spouse and children. The family members are not entitled to any of these items.The Law provides that when a person dies and leaves behind a spouse and a child, they are entitled to all his household chattels, ‘These include jewellery, clothes, furniture, refrigerator, television, radiogram, electrical and electronic appliances, simple agricultural equipment, motor vehicles which were for the deceased's private use etc, The law also provides that where the deceased left one house, that house shall pass to the surviving spouse and child’. Where the deceased left more than one house, the surviving spouse and child can decide which of the houses they prefer. What happens to the rest of the property where the deceased lef other property apart Srom household chattels, a house and a car? The law makes several provisions for distributing the rest of the property * depending on the family members who survived him. 1. Where the deceased left behind a spouse anda. child, the remaining property (thatis “the residue”) is distributed as follows: abn e | a Gie ' three-sixteenth to the surviving spouse; nine-sixteenth to the surviving child; one-eighth to the surviving parent; one-eighth in accordance with customary law. Bo sp If the deceased is not survived by a parent, then one-fourth of the residue shall pass according to customary law.What f the deceased is survived by a spouse and not a child? ateslaw. Again, if there is no Portion of the property which should have gone to the parent will pass. according to customary law. Stpewsing the deceased ms notsurvned bye spousenora child buthy a parent sO RR a Here, the parent shall receive three-fourths of alll hi household chattels, hi is property (this includes OvSs: car ete.) and one-fourth shall pass under customary law. thereisnolaw applicable o the deceased, what happens?tana Cases where part ofthe property isto pas according to customary lew and there is no such law applicable, then persons who are entitled va share the Eisperty shall share equally the portion which should have passed uades customary law. Inthe event thatthe deceased isnot survived by a spouse, child nor parent, who gets his ‘property? RY In such an event, the whole of his property shall pass in accordance with, customary law. Ff the deceased does not leave a surviving spouse or child or parent and there i 10 customary law applicable, how isthe property distributed? he ofThat do we mean when we say part of the property shall passin accordance with customary law? This means that ‘if the deceased person was an Akan or Ga or Ewe or of any other ethnic group, then the law of that ethnic group with regard to succession, shall be applied. ILLUSTRATION 1 ‘The deceased, Kwasi Amankwa is an Ashanti. Under Akan customary law, inheritance of a deceased person's property is through the matrilineal line. Therefore, it is the persons who form his matrilineal family who will be entitled to the property that shall pass in accordance with customary law. ILLUSTRATION 2 Nii Tetieh’s mother is a Fante from Saltpond and his father a Ga from Labadi. According to Fante customary law which is matrilineal, Nii Tetteh. belongs to his The law refers to spouse or child. Does this mean that where the deceased was « man ‘andthe had more than one wife, only one of them can benefit under the law? No. Where the man has more than one wife all the wives shall be entitled to share the portion of the property that goes to the spouse. In the same way, where there is more than one child, irrespective of whether the deceased was marion to their mother atthe time of his death, all these shall be entitled to share equally the Portion of the property that goes to the childs, ILLUSTRATION 3 Probity Kumado was a rich fisherman who died intestate in October 1990. At the time of his death, he had three wives, He also had 25 children, 16 with his current wives and the other 9 with four other women, two of whom he married but divorced before he died but the two others he never married. When it comes_ ILLUSTRATION 4 Mr. Winston Edward Mensah is a top business executive who lived in England for several years before returning home to set up his own business, Whilst in England, he married Miss Diana Morris according to English law and had three children by her. On their return home, Mr. Mensah met Miss Janet Agoogi with whom he hada child. Mrs. Diana Mensah later got to know of the existence of the child and thisled toa break-up of her marriage with Mr Mensah, Agoogi and her child. Mr. Mensah Performed the customary marriage rites for Miss Agoogi to become his wife. Mr. Mensah lived with Miss Agoogi for over 15 Years during which she was known everywhere as "Mrs. Mensah”. Mise Agoogi had 5 children altogether. Mr. Mensah also severed all relationship with Mrs. Diana Mensah but he never took any steps to divorce her in court even though he Purported to have seturned the customary drinks to her parents to dissolve the marriage. Mr. Mensah on atrip outside Accra was involved in a car accident and died instantly. Mr. Mensah left no will. get the property that goes to the surviving spouse. Unfortunately for Miss Agoogi, she cannot claim any of Mr. Mensah's property. Her children, onthe other hand, togetiner with Mrs. Diana Mensah's 3} childne, will share the portion Of the property that is due to the child’, IMPORTANT Second wives of men who are married under the Mattiage Ordinance, please pote that the law does not recognize you asa wife and that no matter how longhe is separated form his “Mrs.” and no matter that the customary matriage rites have been performed, your marriage isnot valid under the law and therefore you shall notbe entitled to any of his property if he should die intestate”Teseems that the law assumes that all persons who die intestate will have enough property to be distributed among so many parties. What happens if the deceased did not leave much property behind? The law provides that where the estate which the deceased left does not exceed €10,000,000. (Children's Act 560) cedis, the whole of it shall pass to the surviving spouse and or child, If the deceased left no surviving spouse and child butiis survived by a parent, then inthe event of the estate not exceeding cedis, all of itshall passto the parent. Can the grandchild of a deceased person get a portion of his grandfather's property under this law? ‘The law provides that where a deceased person is survived by the child of his own child (ie. grandchild) who died before him, he will be entitled to the portion that would have gone to his own parentif he had lived. ILLUSTRATION 5 Alhaji Abuhad 5 children. One of them, Aminatu, died in 1975 leaving 2 young children. Alhaji Abu, on the death of his daughter, took her 2 young children and brought them up. The children are now in secondary school. Alhaji Abu died in 1989, leaving considerable property. Under the law, the 2 children of Aminatuare entitiled to the share of the property which would have gone to their mother f she had not died before Alhaji Abu. In other words, the portion of the property which should go to Alhaji Abu's children will be divided in five parts and one part will go to Aminatu's two children, Can the surviving spouse or child be ejected from the matrimonial home before the distribution of the estate? ‘The iaw prohibits the ejection of a surviving spouse and child from the matrimonial home before the distribution of the estate of the deceased, whether testate orintestate: a, where the matrimonial home is the self-acquired property of the deceased; b. where the matrimonial home is rented premises, unless an ejection order is obtained from court; ¢ where the matrimonial home is the family house of the deceased, unless a period of six month has expired from the date of the death4. where the matrimonial home is a public property unless, a period of three months has expired from the date of the death of the deceased. What is the matrimonial home? ‘The house or the premises occupied by the deceased or the surviving spouse or child at the time of the death of the deceased or any other selfacquired house of the deceased occupied by the surviving spouse or child or both at the time of the death of the deceased. What will happen if on the death intestate of a person, the family of the deceased derives away the surviving spouse and children from the house they lived in with the deceased? ‘The Intestate Succession (Amendment) Law 264 of 1991) makesit an offence for anybody to deprive any person entitled to a portion of the property which can be distributed under this law of the use of the property or ejects the surviving spouse and child from the matrimonial home occupied by the deceased and the surviving spouse and child at the time of the death of the intestate. Such an offender may, of conviction, be fined a minimum of ¢50,000.00 or a maximum ‘of ¢500,000.00 or imprisoned at the same time. The court may also make an order reinstating the ejected person or restoring the property that he or she has. been deprived of.FEW WEEKS ATTER THE FUNERAL eR (Look wa aE HOSBAMBS Panny SHARED Wis PROPGETY ( osm geTwe CUT, YouPRE mT amy RecoRbinig 70 CUSTOMARY LAW. SME Was “WEN moved uF OF THE MOUSE BY CPANNT oso (THe CusTOMAaY SUCCESSOR), Ao S600 LATE HOBBAND FAMILY SHARED 415 Pare ‘AMONG TWEDASELVES An WALKED MAE ONT OF THE ‘House,Y ‘o Va 15 Acawgt me PSHE MS, EN Gave, LAW. Don Wont, Wl J ee Ce en > SHALL GET YOUR HusBanbs ether) BACK Fea You. Paaynl Kaye, THE CASE TS OVER aD 2 iat, taeRerene YoU, MUST PMY tf sake 2k steswmiee, 501 rein tas ET, TOU ALE Also 49 nove bur or Sat tous ewe emmy wemens, sie 0 Panay /7énS TAM TE Weuse. muse ReTuaw THEM BE EARLY AS OFIBLE 08 EAE pRosbcuTion!ILLUSTRATION 6 ‘Madam Korama has just buried her husband of 25 years. On her husband's death, as soon as his family arrived from the village, she was asked to move out of the bedroom she shared with her husband. Theroom had tobe locked according to custom, until after the final funeral rites. ‘The fortieth day celebration has passed anda customary successor has been appointed. The family now informs Madam Korama that the customary successor will be moving into the house so she must go back to her parent's house. The customary successor had already taken over the use of her husband's car depriving her of the use of it. ‘Mad. Korama's sister who was away in another town came to visit her parents and heard of her sister's plight. She was aware of the provisions of the Intestate Succession Law and so prevailed upon her sister to report the matter to the Police. The customary successor was arrested and put before court. He was found guilty and fined between ¢50,000.00 and ¢500,000.00 or to a term of imprisonment not exceeding one year. Mad. Korama was given back the house and the car and all family members who had taken things from the house were ordered to return them or face prosecution.OTHER POINTS TO NOTE UNDER THE LAW 1. An adopted child of a deceased person is also entitled to a portion of the estate in the same way as the natural child of the deceased. It is only the self-acquired property of a deceased which could have been disposed of in his lifetime which may be distributed under this law. Therefore property held by a deceased person on behalf of his family of which he is head or on bebalf of a community of which he is chief cannot be distributed in accordance with the law as its not his self acquired property. ILLUSTRATION Mr. Mensah was appointed a family head to take care of the family cocoa farm At the end of every cocoa season the proceeds from the cocoa sales are shared among the family members. Mr., Mensah died intestate leaving two houses, The Surviving wife and children took the matrimonial home. When it came to sharing the second house the family members claimed that the second house built was built while Mr. Mensah was the family head and that he used family resources to build the second house. The wife and children denied this, saying that even though he was the family head at the time, he used his share of the Proceeds from the cocoa to build the house and that all the family members were given their share of the proceeds and have used itin any way they pleased, In this case since Mr. Mensah used his share of the proceeds from the cocoa sales that was given to him by virtue of his position as a family member to put up the house, it can not be described as family property. Its his self acquired property and his wife and children still have a share in it with the rest of the family ‘members in accordance to the law. Note: However when a deceased person uses money from the proceeds of Property that he holds in trust for the family to build a house that house becomes family property.SOME FREQUENTLY ASKED QUESTIONS How can one carry out the distribution where the residue comprises houses and cars since applying the percentage points outlined by law is difficult? If the deceased left several houses and cars then the surviving spouse will be given exclusive right of choice as to Which houses and cars they prefer What happens when the deceased person built the matrimonial house on family property? ‘The house becomes family property What happens where a deceased person has some part of his property not covered by a will? The law provides that where a person dies without making a will or if his will does not devise all his properties then PNDCLI11 will apply to that part of his properties which is not affected by the will. What happens when the deceased person lived ina rented apartment? ‘The law provides that unless a tenant refuses to pay rent and or breached any covenant or other terms under the contract then the surviving spouse will continue to reside in the rented apartment to complete the residue of the rent. What happens when the deceased person lived with his family in a Government house? The law provides that the surviving spouse will be given six months notice to find alternative accommodation. What happens when the deceased person lived with his family in a family house? Can the family eject the surviving spouse and children? ‘The law provides that the surviving spouse and children should be given a share of the family house. The family cannot therefore eject themPROCEDURE FOR ADMINISTERING INTESTATE PROPERTY Property of a deceased person can only be distributed afte obtaining authority from the Court to do so. The authority from the Court is known as Letters of Administration (LA), Application for letters of administration (LA) under legislative instrument 1515. THE GRANT OF LETTERS OF ADMINISTRATION AND PROBATE ARE CURRENTLY GOVERNED BY | ORDER 66 OF THE HIGH COURT (CIVIL PROCEDURE RULES) 2004 (C147). The following persons can apply for the Letters of Administration in terms of priority, + ‘Thesurviving + Child * Parents and /or * Arepresentative of the Customary Family ‘Note-if the children are minors, they may be represented by their mother What happens when the deceased person was in debt before he died? The debt could be paid from monies left behind by the deceased, or through the sale of any of the deceased persons estate, Can the debtors collect the debt from the surviving spouse? The debtors cannot collect any money from the deceased spouse however any of the deceased's estates couldbe sold to defray the debts, SOCIAL SECURITY AND NATIONAL INSURANCE TRUST (SSNIT) PENSION AND CHILDREN Where a deceased person does not nominate children who are of school going age on his/her SSNIT nomination forms, they will still be entitled to 60% of his/her pension, the remaining 40% will go to the deceased person'snominee,ILLUSTRATIONS 1. Agya Koo died intestate in 1983 leaving a cocoa farm at Kadjebi. While in hospital he told all his family members that when he dies a third of his cocoa farm should be given to his children, a third to his wife, and a third to his nephews. His wishes were carried out after his death. The nephews got to know of a land he bought at Sefwi in 1984 and so took possession and started cultivating oil palm. Five years after Agya Koo's death his children got to know about the oil palm farm and therefore approached the nephews to demand their share of the farm. The PNDCL111 will not be applicable since it came into effect in the year 1985, two years after the death of Agya Koo. The applicable law will be the customary law of Agya Koo. i However if Agya Koo died after PNDCL111 came into force then his children would be entitled to a portion of the farm which was not devised. This is because they are the children of Agya Koo and the law is aimed at providing adequately for the spouse and the children out of the deceased's estate. 2. Auntie Mary does not have a child of her own. A distant relative's child called Afua has been given to her and has been living with the child since she was onlya year old. ‘Auntie Mary does everything for the child as if she was the natural mother. Afua calls her “Mama” and everybody regard them as mother and child. Auntie Mary died intestate when Afua was 15 years old. She left behind a house anda social security entitlement. On the social security forms, Auntie Mary named her sister as the beneficiary. Can Afua benefit under the estate and also rhe social security benefit? Give reasons for your answer, Firstly Afua is not Auntie Mary's child biologically, so Auntie Mary should have adopted her either by custom or by legal adoption. Afua therefore cannot benefit from the estate, Auntie Mary's sister will be the beneficiary,SOME CASES THAT HAVE. BEEN DETERMINED BY THE COURT O: PNDCLAW 111 () Prempeh v Agyepong(1993) Tssue: Whethera concubine can claim the property of a deceased person Facts: The deceased was a lawyer, who died without making a will. Hi: comuubine was asking for a share of his property. What did the cours say? : The was Concubine has to prove the existence of a valid marriage under the ordinance o Customary law. Since she failed to do so. ‘she cannot claim the property. ® Appiah v Biani-1991 Issue: what is the meaning of home? ' Facts: The deceased left an uncompleted house. The widow and children’ claimed the house as their matrimonial home, but the mother of the deceased ic argument that the structure was not a “house’ as the law defined under the law.KEY CONCEPTS Intestacy: When a person dics without making a will or leaving instructionsasto how his or her property is to be distributed, such a person is said to have died intestate. Immovable property: Landed property such as houses or land Movable property: Any property that is not a house or land such as cars, furniture, television, etc Chattels: These usually are things used in the house, such as radio, cooking utensils Beneficiary: All those members of the deceased's family who are designated by Law 111 to havea share in the deceased's property, These are the wife or wives (in the case of a deceased who was married polygamously), child ore children, surviving parent or parents and the customary family. Customary family: The members of a person's extended family depending on whether one comes from a patrilineal or matrilineal system of inheritance Residue: The remainder of the deceased person's property which will be shared in accordance with Law 111 after the surviving spouse and children have taken the share that has been set aside for them under the law Personal Property: This refers to any property that the deceased acquired with his or her own resources or that he or she inherited or received as a gift from another person. This does not include any property that the deceased was holding in trust for another person or group of persons. For instance if the deceased was a family head and was holding family property in trust for the rest of the family, this will not be considered his personal property.