SUCCESSION UNDER CUSTOMARY LAW

In as much as PNDCL 111 regulates succession, this wasn’t the case previously.
Sections 5,6,7 and 8 provide for the family in accordance with customary law, thus,
extended family inclusive.
1. The Oxford Dictionary defines family as the nuclear family; two parents plus the
children.
2. Bentsil- Enchil defines family as a group of persons who are lineally descended
from a common ancestor.
In Ghana, we have two types of family; the patrilineal and the matrilineal type of
family.
3. Kludze also defines family as a legal entity which confers rights, obligations to
members within a particular family. It also includes the determination of citizenship
as well as succession to office within a particular community.

PATRILINEAL = Eastern part of Ghana + North + Ewe

Agnatic kinship

MATRILINEAL = Akans + Ga-Mashie

4. By blood relations or circumstances. E.g. family of slaves adopted family ancestors

etc. The person adopted must be done properly under customary law. This is done by
consent from the parents, the members of the family etc.. Orphanage adoption is not
under customary law.
SLAVES – children of a slave will trace their ancestry through the slave to the adopted
master. HUSSEY V EDAH [1992-93] GBA 1703
STRANGER ADOPTING - QUARCOOPOME V QUARCOOPOME, KING VELLIOT,
YAHUNA V ABOUD

When a person dies intestate, his self-acquired property becomes family property.
This assertion is by the matrilineal group. This is because family aids in marriages,
funerals, provision of lands etc.… RE ANTOBAM

Children and surviving spouse are not considered members of his family for
inheritance in matrilineal

For Patrilineal, it is the children that will inherit properties from the deceased.
Sometimes brothers inherit wife, children and property. HAUSA V HARUNA,
AMPONSAH V BADU
The man’s family consists of his paternal brothers and family, stand in his stead.
The children of female daughters do not inherit in his patrilineal system. It is a life
interest for the female children.
Appointment under the customary law
- Children
- Appointment is usually by a family meeting properly constituted by principal
elders.
- Individuals cannot appoint his successor under customary law
- Upon death property doesn’t belong to you but family. Family therefore
decides
IN RE ATTA; KWAKU V TAWIAH

In Matrilineal communities, persons who stand to succeed upon intestate death are
persons who emanate from the same womb.

In Patrilineal systems, all children will succeed. YAWOAGAA V YAWOAGAA, AKROFIE

V AKROFIE, KHOURY V TAMAKLOE

Even though children stand to succeed, there is still a requirement of a meeting and a
consensus reached. Consensus is usually based on senior male kids or seniority. Male
children get priority over the female children.
Should a female succeed, she only has a life interest. Male is an absolute gift. GOLO V
DOH, AMPONSAH V BADU

OWNERSHIP OF THE CORPSE

Customary law corpse is owned by external family. Family decides when and whether
or not it is buried. NII QUAYE V ASHALEY OKOE
Under customary law, control/authority is on the family.

Customary law says a corpse is not a self-acquired property thus there cannot be a
disposition.
Also section 18 – defines property as movable/ immovable property. Thus the corpse
is not a property.

Under Matrilineal systems, children can have a say. But in both systems, a spouse has
no say, because a spouse is not a member of the family in both systems.
Even if it was written how property should be disposed, it is not legal.

Look at the ANATOMY ACT 1965, Act 280 sections 1,2,3 and section 9(1)

Any individual can direct licensed persons to carry out some procedure to bodies
after death. Section 9(1) of Anatomy Act.
For the purposes of cremation, the family must consent.

INTESTACY UNDER THE MARRIAGE ORDINANCE

Before PNDCL 111, the Marriage Ordinance Cap 127 regulated the estate of a deceased
person who was married under the ordinance. If deceased didn’t marry under the
ordinance but is a child of a person who married under the ordinance, the law
applies.
Section 48 of CAP 127 regulated the distribution of the estate. This section has been
repealed by section 19(a) of PNDCL 111.

THE MOHAMMEDAN ORDINANCE

CAP 129 regulated the marriage of Muslims who died intestate. Under CAP 129, for a
Muslim who contracts a Mohammedan marriage, Islam law will apply only if the said
marriage was registered under section 10 of CAP 129. In the absence of that, personal
law will be used. That is the customary law. KWAKYE V TUBA, BRAIMAH V ASANA

See section 5 of CAP 129

Section 10 of CAP 129 has been repealed.

Section 48 of CAP 127 treated the distribution of estate. Males had more than
females. It didn’t affect children born out of wedlock.