SUCCESSION

Nature of Succession
It deals with the law of passing on property to another. The focus is succession
post mortem. Thus, it deals with enjoyment of the property of the dead. It could
be testate or intestate. Where a person (the testator) decides how his property is
distributed (makes a will) before death, its testate succession. The converse is
intestate succession and the law decides how distribution is made.

A will begins by revoking all previous wills. This means a will supersedes all prior
wills. One main feature is the fact that the property is given out as a gift and one
must be specific with regards to property. It is also required that one is specific
and precise with regards to beneficiaries. Where property is immovable, its
referred to as a devise and movable property is referred to a bequest or a legacy.
A will can be used to also make appointments. The regulating legislation is the
Wills Act 360. Where a person predeceased the testator, he does not get to
succeed instead it reverts to the estate and falls within the residuary clause. In
the absence of a residuary clause, the person will be deemed to have died
partially intestate.
Where a person deals or interferes with property of deceased without the
authority of the court, he is deemed to be intermeddling. However, it acts are
done to facilitate or maintain the property, it is not intermeddling.
Doctrine of Ademption
If property in the Will has already been sold, disposed of or converted before Will
is read, the property is said to be adeemed. The beneficiary receives neither the
property itself nor the proceeds. Where chattels are insured, beneficiary has no
right to the insurance money. It may arise from the operation of law if the subject
matter of the gift disappear from the testators will as a result of nationalization in
this case the question arises whether beneficiary is entitled to compensation

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In Re Galway.
THE LAW OF WILLS
WHAT IS A WILL
A will may be defined as a declaration in a prescribed manner of the intention of
the person making it with regard to the matters which he wishes to take effect
upon or after his death.
The definition reveals the essential characteristics of aw ill, even if we do not
accept the definition as entirely satisfactory. These are that :
1. a will is not limited to dispositions of property but may also deal with other
matters;
2. a will operates only as a declaration of intention of the person making it;
3. it must be in a prescribed form , a form now normally prescribed by a
statute;
4. it is always revocable;
5. it takes effect only on death; and
6. it is ambulatory: This means that a will is capable of dealing with property
acquired after the date when it was made, provided that the property is
owned by the testator at his death. It is thus of no fixed effect until the
testator’s death when it crystallizes. It seems that in Ghana , under section
7(1) of the Wills Act, 1971, a will is also ambulatory in the senses that in
case of donees by description it applies to the person who satisfies the
description at the time of the testator’s death.
In AG v Jones & Bartlett, it was held that a deed regularly and duly executed
should be treated as a will, because it was to take effect on death, and should
accordingly attract duty on the legacy. In that case, the deceased by deed , not
described as a will, gave his leasehold and personalty to trustees for the use of
himself for life and of several persons named therein at his death. He reserved
the power of revocation. It was held that the document was a will.

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CONTRACT TO CREATE A WILL
The law permits an individual to make a contract during their lifetime, making
provisions for others under their will. Such a contract to create a will arises
where, for example, one individual persuades another to work or marry him in
consideration of making testamentary dispositions in their favour. Such contracts
are revocable (see synge v Synge) as a contract to create a will cannot affect the
revocable nature of a will. As a result, even if the testator makes his will in the
form agreed with the beneficiary, he is still free to revoke it subsequently in which
case he might become liable for breach of contract. In Synge v. Synge, a man
persuaded a woman to marry him by promising to leaver her a life interest in his
house. After marriage, the man purported to sell the house; the woman
proceeded against him for damages for breach of contract
PROPRIETORY ESTOPPEL
The concept of proprietary estoppel provides another means of obtaining a
portion of a testator’s estate outside the clear terms of a will. Re Basham (1987)
(1 All E.R. 405) is illustrative The testator promised to leave his estate to a
stepdaughter who had helped run his business for over 30 years without
remuneration. The step-daughter had to abandon plans to relocate when the
testator persuaded her that he would leave his estate to her. When the testator
died it was discovered that he had left the estate to two nieces rather than the
step-daughter. The court held that the testator had encourage the belief of the
lady that the estate would be left to her. And as she had consequently acted to
her detriment, the testator was estoped form giving the estate to any other
person. Plaintiff was held to be entitled on the basis of proprietary estoppel.
TYPES OF WILLS
Joint wills, conditional and mutual wills
CONDITIONAL WILLS
These arise where the will operate only on the occurrence of a specified event.
The event therefore becomes a precondition or condition precedent for the

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operation of the will. Events which may be made preconditions for the operation
of a will include provisions that the terms of the will should only operate if a
spouse predeceases the testator, or if the beneficiary undertakes a specified task
such as nursing the testator to the end or if the testator dies in the course of
undertaking a specified event. In the case of In The Goods of Dodson, the will
started with the words “ In case of any fatal accident happening to me…” Equally,
in Re Spratt’s Goods a will was made in the form of a letter by an army officer
addressed to his son, directing that that son should inherit his property should he
die during an expedition. The officer did not die in the course of the war and lived
for more than three decades without executing another will. The will was
admitted to probate as not being subject to the condition that it should only
operate if the soldier had died. This raises problems as to the nature of the
conditions necessary to give effect to a conditional will. In particular some degree
of certainty is required as to whether imminent danger is the motive for making
the will or whether death in those circumstances is the real condition. Because of
these problems, recent authorities suggest that extrinsic evidence is admissible to
determine whether a will is conditional.
In Corbett v. Newey, although the testatrix had drawn up a new will she had
declined to sign it until a life time gift had taken effect. The will itself made no
mention of this precondition which the testatrix had only expressed to her
solicitors. Although the testatrix eventually signed the will, it was not dated. She
issued a note to her solicitor that the will should not be dated until the life time
gift had taken effect. These facts were held to be admissible as extrinsic evidence
to establish precondition. The court held that the testatrix lacked testamentary
intention as at the time she executed the will.
MUTUAL WILLS
These occur where two or several persons execute wills in broadly similar terms
and agree not to revoke them. This usually occurs between spouses where they
seek to protect the interest of the survivor and their issues. Notwithstanding such
will s can be revoked and varied by the mutual consent of the parties. However, if
there is unilateral revocation during the joint life of the parties, the other party is
free from the obligation not to revoke. This stems from the principle of
revocability of wills even where they are expressly described as irrevocable. In

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pursuit of fairness, equity imposes rights and duties arising out of the concept of
constructive trusts on beneficiaries of the new will who hold the property on
constructive trust for persons to benefit under the old agreement. Re Haggar
suggests that the constructive trust attaches also to all property owned by the
survivor at the date of death of the first party. This concept is the nearest thing
we have to an irrevocable will and its an equitable doctrine.
Three conditions are essential to establish a mutual will. First an agreement by
the parties to the will, making provisions for each other. Second , an agreement
binding the survivor, and finally, occurrence of the binding event anticipated by
the will.
It is not necessary that a mutual will be executed on a single deed. The
documents containing a mutual will may be separate or joint. What may be
describe a ‘joint mutual will’ occurs when mutual wills are contained in one joint
document executed by the testators. IN Re Hagger, a husband and wife carried on
a business together and kept their savings as common property. They made a
joint will proving that on the death of whoever of them died first the whole of his
property should pass to trustees, upon trust for the survivor for life, and
thereafter upon trust to sell the property and divide the proceeds among nine
named individuals. They further agreed that neither testator should revoke or
alter the will without the consent of the other. The wife died first and portions of
the will concerning her estate came into operation. The husband die later, having
made a further will directing that ‘everything of which he was capable to dispose’
should be held on trust for certain other persons. The court considered whether
the latter will operated upon the husband’s share of their common property, and
held tht it did not as the contract not to revoke operated at the wife’s death to
convert the husband into a trustee of his own share of the property upon trust to
apply the manner prescribed by the court.
JOINT WILLS
Joint Wills arise when two or more testators express testamentary intentions in
one document in compliance with the Wills Act, 1971. The joint will however,
operates as the separate wills of each of the parties; if one party predeceases the
other, parts of the joint will pertaining to her estate are admitted to probate as

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her last will and testament. Equally, the remainder of the will is admitted to
probate on its own account when the other party dies.
A joint will can be revoked by any of the parties at any time without the consent
of the others. Similarly, one party can make a codicil to a joint will without the
knowledge or consent of the others; and one party can similarly republish a joint
will by a separate will.
LIVING WILLS
It describes the forms of treatment a patient may receive should he lapse into a
coma or a permanent vegetative state. They are also known as advanced
directives for healthcare declarations or will to live. This happens before a person
gets to the state where the person can no longer communicate his treatment.
NOTARIAL WILLS
In several jurisdictions, attestation of a will by a notary is compulsory. This takes
either of two forms:
a. the testator makes a declaration to the notary that the document is his final
will and testament; or
b. the will is in itself drawn by a notary.
At present, neither of the above is required by Ghana’s law of wills, but there is
certainly a case to be made for the involvement of solicitors in the drawing up of
wills. Josiah argues that this will facilitate clarity and precision as well as promote
precision and efficiency. Adoption of notarial wills in Ghana he submits will almost
certainly cut down a large number of the risks run by testators and avoid the
possibility of lapses, particularly for uncertainty. He argues further that if notarial
attestation of wills were made compulsory in a largely illiterate society it may
have the unintended consequence of rendering many testamentary documents
invalid, particularly on account of the concentration of legal practitioners in the
urban areas. It would mean that many testators outside major towns may not
have access to solicitors to draw up valid wills.
………
FORMALITIES FOR THE EXECUTION OF WILLS

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Regarding formalities for the creation of a valid will in Ghana, Sections 1,2 and 5
of the Wills Act , 1971 provide the necessary requirements by stating the
following statutory requisites :

SECTION 1
“1(1) Any person of or above the age of eighteen years may in writing and
in accordance with this Act make a will disposing of any property which is
his or to which he will be entitled at the time of his death or to which he
may be entitled thereafter.
(2) No person suffering from insanity or infirmity of mind so as to be
incapable of understanding the nature or effect of a will shall have capacity
to make a will during the continuance of that insanity or infirmity of mind.
(3) A will or any other provision of a will, obtained by fraud or made under
duress or undue influence, shall be void.
SECTION 2
2(1) No will shall be valid unless it is in writing and signed by the testator or
some other person at his direction.
(2) No signature shall be operative to give effect to any disposition or
direction which is underneath or which follows it, or which is inserted after
the signature has been made
(3) The signature of the testator shall be made or acknowledged by him in
the presence of two or more witnesses present at the same time. See In Re
Okine
(4) A signature by some other person at the direction of the testator shall
be made by that other person in the presence of the testator and two or
more witnesses present at the same time.
(5) The witnesses shall attest and sign the will in the presence of the
testator, but no form of attestation shall be necessary. In Re Okine
Different rules are stated in relation to blind and illiterate persons :

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 “(6) Where the testator is blind or illiterate, a competent person shall
carefully read over and explain to him the contents of the will before it is
executed , and shall declare in writing upon the will that he had so read
over and explained its contents to the testator and that the testator
appeared perfectly to understand it before it was executed.
Formalities are also prescribed for the alteration of wills.
“5(1) No alteration made in a will shall have effect unless it is separately
executed in the same manner as is required for the execution of the will, or
unless it has been made valid by the re-execution of the will or by the
subsequent execution of some codicil thereto.”
The following general requirements may be gathered form the above:
1. To be valid, a will must be in writing an signed either by the testator or
some other person in his presence by his direction
2. The testator’s signature must be signed or acknowledge by him in the
presence of two or more witnesses present at the same time; and
3. each witness must attest or sign the will in the presence of the testator, the
presence of other witnesses not being entirely necessary.
REQUIREMENT OF WRITING
Section 2 (1) of the Wills Act, 1971 , requires that a will must be in writing ,
perhaps for the reason of achieving a certainty of the testator’s intention, though
the construction of words used has often resulted in uncertainties. This does not
mean that the will must be in the testator’s own handwriting ; for, it may be
written for him. A will may be handwritten , typewritten or printed or consist of a
combination of these or any of them. If it is handwritten , it may be in ink, biro,
pencil, or partly one and partly the other. Pencil alterations, however, may be
regarded as prima facie deliberative.
A privileged will made by a member of the Armed Forces while engaged on active
service need not be in writing. Under section 6(1) (c) of the Wills Act, 1971, such a
will may be made orally before two witnesses. Its derived from Roman law. It’s a
privilege to soldiers while serving.
LANGUAGE

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Practically every known language may be employed in a will including vernacular.
In Re Opoku is authority for the view that a will written in indirect speech is valid.

SIGNATURE GENERALLY
The signature is the most important part of the will; an authentic signature
confers the testator’s authority on the will. On account of the vital nature of the
signature the law of wills requires the presence of attesting witnesses. The
stringent requirements for signature in the law of wills, perhaps, only occur again
in the legal process during the taking of caution statements at a police station.
SIGNATURE OF THE TESTATOR
A will made under the Wills Act, 1971, is not valid unless it is signed. It must be
signed by the testator himself or some other person on his behalf. Under section
2, a will could be signed by some other person on behalf of the testator “in his
presence and by his direction’. This means that the presence of the testator
himself at the time of the signature is necessary for the validity of a will which is
signed on behalf of the testator or by some other person. It is not enough to
show that the person who signed on behalf of the testator did so ‘by his direction
or on his authority. Our Wills Act, 1971, carries the matter further.
It is provided in section 2(4) of the Wills Act, 1971 , that where the will is signed
by some other person at the direction of the testator, that other person must
sign, in acknowledgement of that fact, in the presence of the testator and two or
more witnesses present at the same time. It is now not sufficient, if only the
testator is present when some other person signs on his behalf. At least two
witnesses must also be present. It was confirmed in Smith v Harris that one of
the attesting witnesses may also sign on behalf of the testator. Any person signing
on behalf of the testator may also sign in his own name rather than the testator’s
(See In the goods of clark)
The courts have given a liberal meaning to what constitutes a signature in the law
on wills. The word ‘signed’ has not been construed narrowly in the normal
acceptation of the expression. Therefore, it has been held that a mark or initials

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are sufficient if intended to represent a signature. A ‘signature’ may be made
even by a rubber stamp. It does not matter that the testator’s hand is guided in
making the mark or initials. In the Ghanaian case of Baksmaty v Baksmaty[1964]
GLR 56, the hand of the testator who was weak from diabetis, was guided in
making the signature to his will while in the hospital. This was also necessary
because the testator was blind and, after the will had been read over to him, it
was necessary to guide his hand to the position where he had to sign his name on
the will. The court, relying on the English case of Wilson v Beddard, held that it
was perfectly in order, having regard to the testator’s condition, to have guided
the hand of the testator to the place where he had to sign the testamentary
document. It was accordingly held that the signature on the will was properly
made. It is immaterial whether the testator can write or not. Even if the whole
name is not written it may amount to signature. In The Goods of Charlcraft (1948)
1 All ER 700 , the dying testatrix could only write ‘E Chal’ but it was admitted as a
signature of ‘E Chalcraft’, which was the usual signature , because tht was all that
the testatrix intended to write.
Signature in an erroneous name or an assumed name is enough, provided it was
intended to authenticate the will. Where a testatrix singed her will in the name of
her first husband, during the lifetime of her second husband, it was held to be a
sufficient signature. In the goods of Redding, the will was admitted to probate
although in the signature an assumed name was used. More surprising is that
apparent willingness of the court to accept it as signature when no name is used
at all. For instance , in In the Estate of Cook, the words ‘your loving mother’ were
accepted as amounting to signature, because the words were meant to represent
the testator’s name.
Because a member of the Armed Forces, while engaged on active service, may
make a privileged will orally, there is no need for writing and, therefore, no need
for a signature when such a person makes a will under section 6(1) of the Wills
Act, 1971.
PLACE OF SIGNATURE : Under section 2(2) of the Wills Act, 1971, the signature of
the testator must be physically at the end of the will. Any disposition appearing
after the testator’s signature is ineffectual. In In Re Abaka, the will was on a
printed form, and the first page contained typewritten dispositions. The first page

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bore the date , the signature of the two attesting witnesses just below the
testator’s signature. There followed three other pages, numbered 2, 3 and 4,
which , as the court found , contained the most important dispositions of the will.
Unfortunately neither of pages 2,3 or 4 was signed. The court held that probate
could be granted of only the first page, and the 2 nd , 3rd and 4th pages were
rejected because they followed the signature.
ATTESTATION
A will, though duly signed by the testator or by some other persons by his
direction, is not valid unless it is made or acknowledged in the presence of at least
two competent attesting witnesses by the testator. The testator need not sign in
the presence of the attesting witnesses if he signs the will himself; it is enough if
he acknowledges the signature in their presence. If someone else signs at het
direction of the testator, however, under section 2(4) that person must sign for
him in the presence of at least two witnesses.
As regards attestation, section 2 (3) of the Wills Act, 1971 provides that “The
signature of the testator shall be made or acknowledged by him in the presence
of two or more witnesses present at the same time. Since the acknowledgement
is of the signature and not of the will, it has been held that it does not matter hat
the witnesses do not know that it is a will. Indeed section 2(3) of the Wills Act,
only require that the ‘signature’ and not the will itself be witnessed . The
acknowledgement of the signature need not take any particular form; it may be
by mere gesture. There cannot, however, be an acknowledgment of the signature
unless the witnesses see it or have the opportunity of seeing it.
In Re Groffman the will was rejected because only one witness actually saw the
signature at het time it was acknowledged by the testator, although a few
minutes earlier he had told both of them to witness
It is not necessary that the witnesses know that the document is a will. In Norga
v. Khadijatu, the Court of Appeal held that although attesting witnesses must be
capable of attesting a legal ocument, they nee not know that the document is a
will. What they are required to acknowledge is the testator’s signature, not his
will. On a slightly different note, it was held in Baksmaty v . Baksmaty, that
assisted signature is sufficient if testator is so ill that he is unable to sign the
testamentary document without having his hand guided. Finally in In Re Sackitey
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(1982-83) GLR 1196 , it was held that the law permits weak testators to be
assisted in signing their wills.
For signature by acknowledgment to succeed, three conditions are required
1. The will must be signed prior to the acknowledgement;
2. the signature must be seen at the time of acknowledgment;
3. the signature may be acknowledged by words or conduct
Clearly an unsigned will cannot be acknowledged by the testator.
PRESENCE :
After the testator has signed or acknowledged his signature in the presence of the
witnesses present at the same time, the witnesses must also attest the signature
by signing their own names. The witnesses must sign in the presence of the
testator, but they need not do so in the presence of each other. Therefore, after
the testator has signed or acknowledged his signature before booth witnesses,
one of them may be away while the other signs his name in the presence of the
testator.-In Re Okine
Not unexpectedly, questions have arisen as to what constitutes presence for the
purpose of the valid execution of a will. There cannot be said to be a ‘presence’ in
this context unless the person in whose presence the signature is made or
acknowledged could have seen the signing if the cared to look.
For practical purposes, according to Kludze, it is not necessary to constitute the
presence of the attesting witnesses, to prove that the witness did see the testator
sign his name or acknowledge the signature. For , it is often impossible to prove
that another person has seen a thing even if he was present throughout its
exposure to sight. Hence, it is enough to prove that the witness was present, such
that he could have seen the signature. In the absence of proof that the witness
did not see, or could not have seen, the signature of the testator , it is presumed
that the witness saw the acknowledged signature; for, there is always a
presumption that all things have been rightly done unless the contrary can be
shown ; mnia praesumuntur solemiter et rite esse acta.The presumption is
stronger if there is an attestation clause, however informal that clause is.

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A witness cannot , however be said to be present for the purpose unless he is in a
position to se the signature. Hence, a witness who hears the testator in an
adjoining room separated by a wall is not present for this purpose. He is ,
however, present if there is a hole in the wall or a broken window through which
he could have seen the testator’s signature., for , the witness must see or have
the opportunity of seeing the signature of the testator.
It is enough if the testator might see, it is not necessary that he should actually
see them signing. In Yankah v Admniiistrator –General where the court held that
if it appears on the face of a will that it had been properly executed, the
presumption by law is that the testator duly acknowledged it. The court
elucidated this position further in Casson v Dade where the testatrix had already
signed a will and was sitting in a carriage outside the solicitor’s office when the
witnesses signed. The court found that although she was outside she could see
the witnesses through the winnows. Their attestation was therefore held to be
valid.
Attestation : No form of attestation is necessary undersection 2 (5) of the Wills
Act , but it is desirable to have an attestation clause showing that there has been
a due compliance with the statutory requirements. For a valid attestation
however, a witness must write his name. The intention to attest the testator’s
signature is essential. Where the attestation clause does not make it clear that
both witnesses were present at the same time an affidavit to that effect is
admissible in proof of the fact. (Re lartey ).
There is a presumption of due attestation if there is an attestation clause, even if
the witness cannot remember, unless the contrary is shown. This is one reason
why it is desirable to have an attestation clasue.
Capacity to be a witness :
In Re Alhassan’s Application (1968) GLR 941, the testator had in his home-made
will left entirety of his properties to his grandson, then four years old. The
grandson had also witnessed the will along with two others. It was held that the
thumbprint of the beneficiary infant was of no consequence as he could not have
had the necessary intent to subscribe to the will.
BLIND WITNESSES

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It was held in Re Gibson that a blind person is incapable of witnessing a will
because it could not be signed in his “presence” and he could not be a “witness”
to an act which requires capacity for vision.
Pearce, J., explained that : In the light of common sense , and without any
authority, I should be inclined to hold that for the purposes of the Act [ Wills Act] a
‘witness’ means, in regard to things audible, one who has the faculty of hearing ,
and in regard to things visible, one who has the faculty of seeing. The signing of a
will is a visible matter. Therefore, I think that a will is not signed “in the presence
of a blind person or , nor is a blind person a witness for the purposes of the
section’
This does not however answer the question whether blind person can be a
witness to a will written and signed in Braille. A testator may however blind, since
al that is required is that he signs the will. According to the principle in Re Piercy
a blind person is attributed with notional vision in regard to the presence of
witnesses who attest his will. Witnesses to a will may well be called upon to be
witnesses in court in the course of probate when they will be open to cross
examination by the opposing party. However, if no witness is available to give
evidence as to the due execution of the will, evidence may be taken from other
parties.
BLIND TESTATORS
The visually impaired may make a will, provided they possess testamentary
capacity. The will of a blind man whose hand had to be guided was held in
BAksmaty v Baksmaty (1964 GLR 56). In Christian v. Intsiful, the will of a 90 year
old testator with defective eyesight was held valid on the ground that the
testator appeared to understand the contents of the will.
Order 66, Rule 19 of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
provides :
“Where the testator was blind or illiterate, the Court shall not grant
probate of the will or administration with will attached unless the Court is
first satisfied , by proof or what appears on the face of the will, that the will
was read over to the deceased before its execution or that the deceased
had at that time knowledge of its contents”

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The above is reinforced by Section 2(6) of the Wills Act, 1971 which provides
conditions under which a blind testator may sign a valid will thus : “Where the
testator is blind or illiterate, a competent person shall carefully read over and
explain to him the contents of the will before it is executed , and shall declare in
writing upon the will that he had so read over and explained its contents to the
testator and that the testator appeared perfectly to understand it before it was
executed.”
In In Re Mensah (1978) GLR 225 , the court provided a rationale behind Section
2(6) of the Wills Act, 1971 : “ the intention behind the writing of this new
provision in the Act would be that provisions of the substantive Act should reflect
the long –standing practice provided for I the rules which ensures that the
testamentary disposition of blind and illiterate persons as recorded for them do
truly represent their expressed wishes and nothing else/”
ILLITERACY
As noticed immediately above, Section 2(6) of the Wills Act, 1971, “Where the
testator is blind or illiterate , a competent person shall carefully read over and
explain to him the contents of the will before ti is executed, and shall declare in
writing upon the will that he had so read over and explained its contents to the
testator and that the testator appeared perfectly to understand it before it was
executed.
This section was subject to interpretation in Re: Mensah (1978) GLR 225; cf.
Boakyem v. Ansah (1963) 2 GLR 223 where the court considered the validity of a
will executed by an illiterate by way of a thumbprint duly attested by two
witnesses whose signatures appeared below that of the interpreter’s declaration
that the contents of the will had been read over to the testator prior to execution.
Adoption a liberal approach to interpretation, Annan, J. held that the purpose of
interpretation in testamentary matters is to give effect to the last wishes of the
testator. Consequently, both the words appearing on the will and the manner of
attestation were held to be capable of satisfying in substantial manner the
requirements of Section 2(6).
Attestation by Beneficiaries :

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Section 3 (4) of the Wills Act provides that : Any beneficial disposition of or
affecting any property other than charges or directions for the payment of any
debt, given by a will to a person who attests the execution of that will, shall be
void unless the will is duly executed without the attestation and without that of
any other such person.
This means that the will itself is not void. Only the gift to the witness –beneficiary
is purged.
If the will attested by a beneficiary is subsequently confirmed or republished by a
codicil which he does not attest, the beneficiary becomes entitled to take the gift
because it can be said that the gift arises under the codicil. A codicil may
constitutes a re-execution , which gives validity to the earlier will and its
dispositions. Conversely, a gift is not invalid because the beneficiary attests a
codicil which gives him nothing, for he would be taking by virtue of the original
will which he did not attest.
Privileged Wills : Privileged Wills made by members of the Armed Forces while
engaged on active service need not satisfy the ordinary conditions as to
attestation. Where a member of the Armed Forces exercises the option in section
6(1)(a) of the Wills Act, 1971, his will is valid if it is “written and unattested, if the
material provisions and signature are in the handwriting of the testator”. Where
the privileged will is not in the handwriting of the testator, it is valid if attested by
only one witness by virtue of section 6 (1)(b).A privileged oral or nuncupative will
under section 6 (1) (c) of the Wills Act, 1971 , however must be made before two
witnesses. It is not expressly provided that in the case of a privileged oral will both
witnesses must be present at the same time as in the case of other attestation;
but, as the words must be spoken to them, it may be assumed that they must be
present together.
TESTAMENTARY CAPACITY
Two issues are critical here :
a. The possible subjects of dispositions by will, and
b. the personal capacity of the would – be testator to dispose of property
which could properly be the subject of testamentary disposition
Possible subjects of disposition by Will

16
Under section 1 of the Wills Act, 1971, a person may make a disposition of any
property which is his or to which he may be entitled at the time of his death or to
which he may be entitled thereafter. This clearly excludes family property since
family property cannot be counted as part of the self acquired property of the
testator.
Personal Capacity
To be able to make a valid will in Ghana, the testator must be at least 18 years
old. Section 1 of the Wills , Act 1971 provides that “any person of or above the
age of eighteen years may in writing and in accordance with this Act make a
will…”
There is however an overriding provision in section 6(1) that any member of the
Armed Forces of whatever age may while engaged on active service to make a
will. This implies that it does not matter whether the said member of the armed
forces is under eighteen years old.
Animus testandi
Among others, a testator is required to satisfy the law as to the essential mental
requirement to make a valid will . To be valid, the will should be the product of
the testator’s intention and no one else’s. The essential mental requirement to
make a valid will is known as animus testandi. The presence of animus testandi is
crucial because disease and the aging process may affect the mental faculties
rendering them incapable of making a will that reflects the testator’s true wishes,
and may facilitate schemes by covetous and fraudulent persons to substitute fake
wills for that made by the testator.
The onus of proof is upon the party propounding the will and that he must satisfy
the court that the document propounded is the last will and testament of the
testator.
Consequently, the personal representatives bear the burden of satisfying the
court as to the testator’s mental capacity and where the will appears rational and
duly executed, it is presumed that the testator had the necessary mental capacity.
If however, any party challenges the validity of the will on alleged grounds of a
lack of mental capacity and successfully rebuts the above presumption, the
personal representative must adduce further evidence as to the testator’s mental
17
capacity. In Lister v. Smith, in order to induce his mother-in-law to vacate a
property owned by himself, the testator purported to execute a will which
revoked an earlier will of his. This was held to be a hoax and that the testator’s
true intentions in executing the document were not genuinely testamentary. The
document was not therefore admitted to probate.
The general test as to mental capacity was laid down by Cockburn CJ in Banks v.
Goodfellow to the effect that it is essential to the exercise of such a power (i.e.
making a will) that a testator shall
1. understand the nature of the act and its effects;
2. shall understand the extent of the property of which he is disposing;
3. shall be able to comprehend and appreciate the claims to which he ought
to give effect; and
4. With a view to the latter object, that no disorder of the mind shall poison
his affections, prevent his sense of right, prevent the exercise of his natural
faculties; that no insane delusion shall influence his will, in disposing of his
property and bring about disposal of it which if the mind had been sound,
would not have been made.
Several points for discussion arise from the above.
SOUNDNESS OF MIND
Soundness of mind implies the absence of mental defect or disease as will affect
the testator’s capacity to make a testamentary disposition. Cockburn C.J. further
stated in Banks v Goodfellow : “If the human instincts and affections , or the
moral sense, become perverted by mental disease; if insane suspicious or aversion
take the place of natural affection; if reason and judgment are lost and the mind
becomes prey to insane delusions calculated to interfere with and disturb its
functions and to lead to a testamentary disposition due only to their baneful
influence in such a case it is obvious that the condition of the testamentary power
fails, and that a will made under such circumstances ought not to stand.”
It would appear that mere worry or disturbance of mind associated with ordinary
vicissitude of life would not affect soundness. On the other hand, if mental ,
psychiatric and psychological conditions are so profound as to affect the functions
of the mind and the ability to make testamentary dispositions reflecting the

18
testator’s true wishes in regard to both beneficiaries and properties, soundness of
mind may well be affected.
An idiot is generally regarded as lacking a sound mind. On the other hand,
depending on the circumstances, a lunatic may possess sound mind. Such persons
are considered not to be of sound mind while suffering mental disorder. But
during lucid intervals or periods of relative mental stability they may well make a
valid will provided it could be proven that they were not of unsound mind when
the will was made. Soundness of mind may also be affected by drink.
Consequently, if the testator was drunk and makes a will in the course of such
drunkenness, it will be regarded as void. Much depends on the state of
drunkenness however. If it is established that the testator was so drunk that he
had lost his powers of reasoning an understanding, he will clearly be regarded as
not being of a sound mind. On the other hand, a mere tipple will not affect
mental capacity (see Wheeler and Batsford v Alderson). In the same vein drugs
and medication, whether administered for the relief of illness or by the
compulsion of addiction, may also affect soundness of mind. Senility may also
achieve the same effect (see Den v Vancleve ).
In Batan Singh v Amirchand, a will made by a testator during the terminal stages
of consumption was refused probate because the testator was so weakened by
the disease that he was no longer of sound mind.
The question of sound mind came up for consideration in In Re Cole (1977) GLR
305. The testator , while suffering from stroke gave instructions for a will to be
drawn up; he later acknowledged his signature in the presence of two witnesses.
It was argued at trial that the testator was so paralyzed and incapable of speech
that he could not have dictated instructions for his will, and was even incapable of
signing his name. It was further urged that undue influence had been exercised
on the testator by one of the beneficiaries. The court found that the testator had
a sound disposing mind, notwithstanding his affliction. After reviewing the
requirement of a sound disposing mind, the court concluded that if the will was
shown to have been drawn up in accordance with instructions given while the
testator was of sound disposing mind, it would be sufficient that while executing
it the testator appreciated that he was executing a will drawn up according to his
instructions.

19
Sound Memory:
The maker of the will must have sufficient powers of memory to recollect the
extent of his possessions as well as the nature of his relationship with close kin
and friends together with past favours an affections. To be sound , memory does
not need to be perfect ; disease , trauma and the ageing process may exact their
toll on the powers of memory. What is required is a “sound disposing memory” In
essence, the testator should be able to recollect the nature and extent of the
property he contemplates disposing of by will. He should be able to recall also the
objects of such disposition as well as the manner of their distribution. Again, the
powers of recollection need not be perfect and extensive in detail. The testator
needs only to have a general or broad idea of the object of his disposition.
Sound Understanding
Fundamentally, the testator must understand the dispositive character of a will,
and also appreciate the interests and moral claims of a network of friends and
relatives. The exclusion of close relatives from a will not, however , raise the
presumption that the testator appreciated, at the time of making the will, that he
was excluding certain individuals although he knew exactly who they were and
the nature of their moral claims. In Boughton v. Knight , Sir J. Hannen said that
provided a testator has testamentary capacity he “may disinherit children, leave
property to strangers in order to gratify spite, or to charities to gratify pride.”
Consequently, a testator may deliberately choose to exclude particular individuals
from participating in his estate. In Harwood v. Baker, the testator had while on
his death bed made a will leaving the entirety of his estate to his second wife. All
other members of his family were excluded. While making the will the testator
had been in state of extreme weakness form a brain disease. It was held that the
testator was incapable of making a will as he could not comprehend the claims of
his other relatives and that it was insufficient merely to show that the testator
knew he was giving his properties to his second wife; evidence had shown that
the disease produced torpor of the brain and that the testator did not have
sufficient recollection of other members of his family.
Sound mind, Sound memory and sound understanding must coincide if the
animus testandi is to be attributed to a testator, but these elements do occur in
their purest forms. If they were required to the highest standard , it would clearly

20
be impossible for many aged individuals to make a valid will. It needs only to be
shown that the testator was normal and was capable of evaluating various
circumstances at the time of making the will. In the Estate of Park, the testator
had made a will prior to suffering a stroke which left him occasionally eccentric.
Afterwards, he married plaintiff and on the day of the wedding executed another
will leaving a portion of his estate to the plaintiff. The trial court refused probate
on the ground that the deceased lacked testamentary capacity. Plaintiff sought a
declaration that her marriage to the deceased was valid; under section 18 of the
Wills Act, 1837 the marriage had the effect of revoking the will that the deceased
ha previously made. It was held that the marriage was valid was a simple contract
not requiring a high degree of intelligence to comprehend. However, the court
observed that the same cannot be said of a will which frequently involves
complex arrangements.
The law requires that the testator be of sound mind, sound memory and sound
understanding at the time of the execution of the will. Two presumptions are
borne in mind when the courts consider whether the testator has been satisfied.
It is presumed that a testator lacking testamentary capacity at sometime
previously is presumed to lack such capacity at the time of making the will. The
burden is upon the party propounding the will to prove that this was not the case.
On the other hand, where a testator possessed the necessary testamentary
capacity prior to executing the will, it is presumed that he continues to possess
that capacity at the time of making the will
Where a testator instructs his solicitor to draw up his will and such will is
presented to him for execution after a short lapse of time, it appears that the
appropriate time to ascertain if the testator lacked testamentary capacity is when
the instructions were given. It was held in Parker v Felgate that the testator need
only to be aware at the time of execution that he ha given instructions for a awill
and that the will is being executed in accordance with those instructions. In
Battan Singh v Amirchand, the court cautioned against the danger of applying the
above to situations where testator’s instructions are routed to a solicitor through
a lay man because of the possibilities of deception , misunderstanding or error.
In Parker v. Felgate, after several interviews with her solicitor, testatrix gave
instructions that a will be drawn up. Before this could be done, she fell ill and a

21
substitute was quickly drafted on the basis at her instructions. At the point of
execution, the testatrix was falling into a coma . She was roused by a doctor who
asked whether she wanted a friend to sign the will for her. She replied in the
affirmative and the will was signed and attested. This was held to be a valid will,
for though testatrix clearly lacked testamentary capacity, she had believe that the
will given to her was the one she had given instructions for.
In sum for a will to be valid the testator should be of a sound mind, memory and
understanding. This test of soundness of mind, memory and understanding was
summarized by Cockburn , CJ , in Banks v Goodfellow when he adopted the
words of an American Judge thus : “As to the testator’s capacity, he must, in the
language of the law, have a sound and disposing mind and memory. In other
words, he ought to be capable of making his will with an understanding of the
nature of the business in which he is engaged , a recollection of the property he
means to dispose of , of the persons who are the objects of his bounty, and the
manner in which it is to be distributed between them. It is not necessary that he
should view his will with the eye of a lawyer, and comprehend its provisions in
their legal form. It is sufficient if he has such a mind and memory as will enable
him to understand the elements of which it is composed, and the disposition of
his property in its simplest form.”
In the course of the same judgment, Cockburn, CJ also said : “It is essential to the
exercise of such a power that a testator shall understand the nature of the act
and its effects; shall understand the extent of the property of which he is
disposing; shall be able to comprehend and appreciate the claims to which he
ought to give effect; and, with a view to the latter object, that no disorder of the
mind shall poison his affections, pervert his sense of right, or prevent the exercise
of his natural faculties-that no insane delusion shall influence his will in disposing
of his property and bring about a disposal of it which, if the mind had been sound,
would not have been made.”
This according to Kludze triggers four main tests : (i) that the testator is aware
that he is making a testamentary disposition of his assets, though he might not
know that he is legally making a will; (ii0 that he has his property in his mind ; (iii)
that he has the beneficiaries in his mind; and (iv) hat the manner of distribution
among the beneficiaries is determined by him. Therefore , if these four tests are

22
satisfied , a person who is insane in the ordinary understanding of the word may
nevertheless make a valid will during lucid interval.

Lucid Intervals
Although an individual may suffer from mental illness, they may well be capable
of making a will during lucid intervals. This depends on the nature of the illness.
However the general presumption is that the mental illness continues to operate.
Dicta in Cartwright v Cartwright suggest that if a testator suffering from mental
illness makes a rational will without assistance that constitutes good proof of a
lucid interval. In that case, testatrix had been insane for some twenty years prior
to her death. She destroyed a will she had made before the onset of mental
illness. In the final year of her life, she asked for pen , ink and paper and wrote out
a prefect will in which she preferred her nieces of a sister of the whole blood to
other nieces. The will was held to be valid. The court observe that if a will is made
by a mental patient with lucid intervals, such will will be held valid if it was so
framed as to show no evidence of mental disorder.
Insane Delusions
Although a testator may be subject to delusions, which means a belief in the
existence of something which no rational person could believe, and which could
not be eradicated from the testator’s mind by a reasoned argument; but this is
not necessarily fatal to a will; for his general powers of understanding may be
unimpaired for he may make a valid will during a lucid interval. Cockbun CJ said
authoritatively in Banks v. Goodfellow “ A degree or form of unsoundness which
neither disturbs the exercise of the faculties necessary for such an act nor is
capable of influencing the result ought not to take away the power of making a
will.” In this case, the testator had delusions that he was being followed by evil
spirits and molested by a deadman. He made a will and died while afflicted by the
delusions. The will was held to be valid as the delusions could not have had any
effect on the dispositions and on those he should have considered.
Likewise in Re Bohrmann, the testator wrongly believed he was under
persecution by the London County Council. He was sane in all other respects but
23
went off gear whenever the London County Council was mentioned or involved. It
was held that this insane delusion did not invalidate a will made by such a
testator.
A different conclusion was reached in Dew v Clark under broadly similar
circumstances where a testator had excluded an only daughter from benefiting
under his will. It was shown by extrinsic evidence that the testator lacked
testamentary capacity as he had had an irrational dislike of the daughter and
refused to see her during the first few years of her infancy. The will was held to
be invalid as the delusion had had a direct effect on the dispositions.
In Bull v Eulton, the testatrix left the bulk of her estate to her grand-nephew. Two
nephews challenged the will. Evidence showed that for a number of years prior to
her death the testatrix had been delude that the nephews were forging her
signature on vital documents. She consequently excluded them from her will
although they had previously been the main beneficiaries . It was held that
unfounded belief of forgery and deceit amounted to insane delusions and
rendered the will invalid. A further example of a delusion rendering a will invalid
is to be found in Re Nightingale. The testator had made his son the major
beneficiary of his will. While recovering in hospital following an operation to his
lung and being visited by his son, testator formed the delusion that his son was
trying to murder him because the son tried to re-position him to help his
breathing. Consequently, he executed another will and revoked the previous gift
to the son. It was held that the second will was invalid as it was based on the
father’s unfounded belief that the son was trying to murder him.
As a rule it must be proven that the testator had testamentary capacity at the
time he executed the will. The principle operates in cases where the testator
leaves a professional drawn will; testamentary capacity will be assumed if the
following conditions are satisfied :
1. If the testator ha such capacity at the time eh instructed the solicitor to
draw up the will
2. The subsequent will was drawn up according to his instructions; an
3. At the time the testator executed the will, he was capable of understanding
and did understand that he was executing the will for which he had given
instructions.

24
The Rule in Parker v Felgate is that if a testator was competent when he gave
instructions to his solicitor to prepare his will and the will is prepared in
accordance with those instructions, the will is valid even if the testator became
incompetent at the actual time of its execution. Kludze argues however that this
rule should be rejected by our courts by virtue of the language of section 1(2) of
the Wills Act 1971 which simply states that no person suffering from insanity or
infirmity of mind so as to be incapable of understanding the nature or effect of a
will may make a valid will. He submits that a will is not valid if there is supervening
insanity at the time of its execution , even if the testator was of a sound disposing
mind at the time he gave instructions for the will to be prepared and the will was
prepared according to those instructions. The crucial time for the test of sanity
should be the moment of the execution of the will and that moment only.
UNDUE INFLUENCE
This probate doctrine is to be distinguished from its equitable equivalent which
infers undue influence where donor and donees stand in a confidential
relationship. Animus testandi is negatived where the testator is coerced or forced
into signing a document as his will. Such a document does not reflect his true
wishes and would be refused probate, on ground of undue influence, upon proof
of force or coercion. Threats of violence, confinement, starvation and fatigue may
all constitute undue influence upon a testator. However, mere influence and
persuasion will not suffice. Lord Penzance provided the classic definition of
undue influence in Hall v Hall and thus distinguished same from persuasion when
he said : “ To make a good will a man must be a free agent. But all influences are
not unlawful. Persuasion, appeals to the affections or ties of kindred, to a
sentiment of gratitude for past services, or pity for future destitution, or the like –
these are all legitimate, and may be fairly pressed on a testator. On the other
hand pressure of whatever character, whether acting on the fears or the hopes,
is so exerted as to over-power the volition without convincing the judgment, is a
species of restraint under which no will can be made. Importunity or threats ,
such as the testator has not the outrage to resist , moral command asserted and
yielded to for the sake of carried and quiet, or of escaping from distress of mind
or said discomfort, these , if carried to a degree in which the free play of the
testator’s judgment, discretion or wishes, is overborne, will constitute undue
influence, though no force is either used or threatened. In a word, a testator

25
may be led out not driven, and his will must be the offspring of his own volition,
and not the record of someone else’s”
Where undue influence is claimed the burden of proof lies on the party making
the allegation.
In Re Cole , the court considered undue influence. It held that in order to render a
will invalid, undue influence must be an influence which could justly be described,
after an objective judicial consideration to have caused the execution of a paper
pretending to express a testator’s mind, but which really expresses something
other than that meant by the testator.
Again in Mercer v Brempong (1975) 2 GLR 376 the court said “undue influence
means any influence by which the exercise of free and deliberate judgment is
excluded at a time when some interest or benefit is given to another by someone
over whom such influence was exercised.” In Moneypenny v Brown, a will was
held invalid on account of the fact that the testator’s wife importuned him and
guided his hand while executing his will. Again in Mynn v Robinson, where a
woman made her husband sole executor and left him all her property, it was held
that she had been under the undue influence of the husband.
The exercise of immoral influence over the testator does not appear to constitute
undue influence, if the testator genuinely desire to leave his property to a harlot.
In Wingrove v Wingrove it was stated that if a man became ‘caught in the toils of
a harlot’ who induces him to make a will in her favour to the exclusion of his wife
and children, this would not constitute undue influence. Finally in Re Harde, a
spiritual medium ‘transmitted messages’ from the nether world as a result of
which the testatrix executed two wills, making the medium a substantial
beneficiary of her estate. The court held that the medium had taken control of
the testatrix’s mind as a result of which the resulting wills were not a record of
the maker’s mind. Consequently, the wills were held to be invalid on account of
undue influence.
Fraud
Animus testandi will be absent in cases where the testator has been fraudulently
misled into making gifts , or excluding individuals, under his will. This may be
achieved through false statements or conduct. Indeed, any form of deceit,

26
including insertion of clauses in a will, practiced on the testator which affects his
testamentary intentions constitutes fraud. Fraud may also occur where in reading
a will over to the testator parts are excluded. A gift made as a result of fraudulent
misrepresentation is invalid. This was the holding in In the Estate of Posner where
a gift to a beneficiary who misrepresented herself to be the testator’s wife was
held invalid.
On fraud, duress or undue influence, section 1(3) of the Wills Act enacts as
follows “ A will, or any provision of a will, obtained by fraud or made under duress
or undue influence, shall be void.”
Knowledge and Approval
Where a will is drawn by a third party, a possibility is raised that the testator’s
instructions may be varied or misunderstood. To be admitted to probate, such a
document must be shown to have the testator’s knowledge and approval. The
following rules in regard to knowledge and approval were formulated in
Guardhouse v Blackburn
1. The court must be satisfied that the testator knew and approved of the
contents of the will before he signed it;
2. except in cases of suspicion, the testator’s execution is adequate proof that
he knew and approved the contents;
3. In spite of (2) above, probate may be refused if it is proven that the testator
did not intend the document to operate as his will;
4. For similar reasons probate may be refused if fraud is proved;
5. Subject to (4) above, the fact that the will was read over to the testator at
the moment of execution together with actual execution should constitute
conclusive evidence that the testator knew and approved of the contents.
However, in Re Morris it was held that reading over merely constitutes
evidence that the testator may have knowledge and approval of the
document;
The above rules apply as much to parts of the will as to the whole.
SUSPICIOUS CIRCUMSTANCES
The doctrine of suspicious circumstances is designed to prevent fraud by a
third party drawing up the will. It is usually invoked in cases where the third
27
party drawing up the will takes the whole or part of the testator’s estate. It
was said in Barry v. Butlin that if a party writes and prepares a will under
which he takes a benefit, “ that is a circumstance that ought generally to excite
the suspicion of the court and calls upon it to be vigilant and jealous in
examining evidence in support of the instrument, in favour of which it ought
not to pronounce unless the suspicion is removed.” In Andrew v. Fulton, a will
was made in the handwriting of one of the executors leaving gifts to that
executor and another. Evidence showed discrepancies between the testator’s
actual instructions and the terms of the will. It was held that the executors
had failed to alleviate the court’s suspicion.
Section 3(4) of the Wills Act 1971 offers a statutory answer to problems such
as those raised in Andrw v. Fulton by providing that “ Any beneficial disposition
of or affecting any property other than charges or directions for the payment of
any debt, given by a will to a person who attests the execution of that will, shall
be void unless the will is duly executed without his attestation and without that
of any such person.”
Drinks and Drugs
Progressive drinking or drug taking does not necessarily destroy a
testamentary capacity. If however, it is proven that the effects of drugs or
drink have affected testamentary capacity, the resulting will will be invalid for
lack of capacity. In Re R ((1951) P10) a will was challenged on the grounds that
the testator had been a drunkard. The challenge failed as it could not be
proven that drinking had affected the testator’s judgment. Similarly in Ayrey v
Hill ((1824) 162 ER 269) an intoxicated testator was held to possess
testamentary capacity.
Mistake
Mistake may relate to the whole will or to part of it. The testator’s knowledge
and approval may be lacking on account of a mistake either on his part or on
the part of persons employed to draft the will. In the Goods of Hunt is
illustrative of a mistake involving the entire will. A woman prepared two wills
for herself and the sister, but mistakenly executed the sister’s. Probate was
refused on the ground that the testatrix would not have executed the will if

28
she had known that it was her sister’s. Similar facts and issues faced the court
in Re Meyer where the will was similarly refused probate.
In cases like these it may be said that the testator does not have the necessary
knowelge and approval of the document.
In Re Phelan, the testator purchase pre-printed forms from legal stationers
and made four separate gifts on separate forms, executing them on the same
day. Each form had a revocation clause. It was argued that only the last gift
was admissible to probate as the previous gifts had been revoked; and upon
that argument it was held that the testator did not know or approve the
contents of the wills as far as the revocation clauses were concerned.
Therefore all four wills were admitted to probate without the revocation
clauses.
Errors about a will are to be distinguished from the situation facing a testator
who never intended a document as his will. In the latter case, he lacks
testamentary capacity and the will will be refused probate. Clerical or typing
errors, introducing unintended words and phrases, may be omitted from
probate, provide the meaning of the rest of the will is unaffected.
Blind man:
A blind man can make a will , provided he knows and appreciates what he is
doing. In the Ghanaian case of Backsmaty v Baksmaty [1964] GLR 56 it was
held hat although the testator was totally blind, and his hand was guided to
the spot where he signed, his will was valid because it was read out to him
and he approved it. In Christian v Instiful, the testator was an old man, almost
90 years old, and had a defective eye-sight. It was however held that a will
made by him was valid, as he appeared to know and understand its contents.
REVOCATION OF WILLS
For revocation to be valid, the law requires that the testator must have animus
revocandi in order to effect the revocation. Revocation arises from the
ambulatory nature of wills. Wills are considered to be ambulatory as they do
not take effect until death. A testator may change his mind and either alter
clauses in a will, revoke the will altogether or execute further testamentary
documents. Section 9 of the Wills Act, 1971 deals with revocation as follows :
29
 9(1) A will may be revoked by tearing or other physical destruction by the
testator or by some other person in his presence and by his direction with
the intention of revoking it.
(2) A will may be revoked by a written declaration of intention to revoke,
executed in the same manner as a will”
(3) A will may be revoked by the execution of another will which is
expressed to revoke the previous will
(4) A will which is not expressed to revoke a previous will shall not be
deemed to have revoked that previous will except to the extent that it is
inconsistent with the previous will
Thus a valid revocation of will may be employed by :
1. Destruction with intent to revoke
2. Execution of a subsequent will or codicil;
3. Execution of a subsequent document declaring an intention to revoke
A revocation clause may be limited in ambit or made conditional upon specified
occurrences, as was illustrated in In the Estate of Wayland. In that case a
testamentary document declared that it was intended ‘to deal only with my
property in England,’ and was construed by the court as not affecting other
properties of the testator in Belgium. Again in In the Estate of O’Conner, the
court ruled valid a will which was declared to be ineffective in the event of the
testator’s wife failing to survive him. Further , the revocation clause may be
contained in a document other than a will; the only necessity is that the
document should be executed with the necessary formalities. The effect in an
ordinary letter of the words “will you please destroy the will already made out”
was considered in Re Spracklan’s Estate. Several weeks before her death, the
testatrix sent a letter , signed by herself and two witnesses to her bank where her
will was deposited asking: “will you please destroy the will already made out”. It
was held that the letter was an intention to revoke the will and it had been duly
executed. On a dissenting note, Sir Wilfrid Greene MR stated that if the matter
had been free from authority he might have reached a different conclusion since
an intention to destroy does not necessarily amount to an intention to revoke.
Revocation by an express clause.
30
In practice, solicitors have developed a terminological formula for express
revocation, usually in the words : “I hereby revoke all previous wills and
testamentary dispositions already made by me and declare this to be my last will
and testament.” Many wills actually commence with such clauses which have
enormous practical utility; for even when the testator has made no previous will,
they serve to remove every shadow of doubt on the matter. Some revocation
clauses are not as sweeping, and may be limited to removing only specific
provisions in a previous will or codicil. Finally, a revocation clause need not be
cast in verily technical language.
The legal basis for revocation by express clause is to be found in Section 9(2) of
the Wills Act, 1971 : “ A will may be revoked by the execution of another will
which is expressed to revoke the previous will.” It is immaterial that the testator
was misled as to the effect of the clause. Thus in Collins v Elstone, the court
refused to strike out a revocation clause which had the effect of revoking the
testatrix’s will and codicil, although the testratrix had objected to their presence
in the will but had dropped her objections on the basis of the mistaken advice of
the draftsman.
The validity of a revocation clause arose in Lowthorpe-Lutwidge v Lowthorpe –
Lutwidge where the court held that substantial evidence is required to show that
a general revocation clause is ineffective for want of intention since a testator is
presumed to have known and approved the contents of his will. It is important
that revocation is expressed clearly, otherwise subsequent wills may not revoke
an earlier will. In Re Hawkesley, Black v Tidy , the testatrix described a will made
in 1927 as he r “last will”. She had made earlier testamentary dispositions as well
as previous will and a codicil which were not expressly revoked by the 1927 will.
The court held that the previous will and codicil remained valid and that the
combined effects of those testamentary provisions had to be considered together
with the 1927 will.
Burden of proof
Once an allegation is made that a will has been revoked , the burden of proof of
revocation rests on the party alleging revocation. It is emphasized that a will is not
revoked simply by virtue of a radical change in the circumstance of the testator. If,
for instance, a man of straw makes a will leaving his pair of trousers and bare

31
material possessions “ to my friend john”, the gift will still hold if he subsequently
becomes a man of substance possessed of several mansions and other properties.
John will still be entitled to them being the only beneficiary.
Revocation by Actual Destruction.
By section 9(1) of the Wills Act 1971, “ a will may be revoked by tearing or other
physical destruction by the testator or by some other person in his presence and
by his direction with the intention of revoking it.”
There are therefore three essential elements in the effective revocation of a will
by actual destruction. They are
(1) a physical act of destruction (2) the act of physical destruction must be carried
out by either the testator himself , or some other person in his presence and by
his direction ; and an intention to destroy. Tearing, burning or acts ejusdem
generis these are considered sufficient to constitute ‘destruction’.
The Act of Destruction: The cases suggest that destruction must be actual and
physical and not symbolic. Both cutting and the scratching of signatures have
been regarded as constituting physical destruction see hobbes v knight and Re
Morton. Therefore, the mere writing of a word like ‘cancelled’, or anything of
similar effect, across the will, is not enough to revoke the will, even if done with
the intent to revoke it, because the act of physical destruction would be lacking.
In In The Goods of Godfrey however , where a signature was destroyed but was
still legible, the court held that there had been no physical destruction. The case
of Cheese v . Lovjoy(91877)) 2 PD 251) remains a classic for revocation by
destruction. The testator attempted to revoke his will by crossing and writing on
the back of the document. “These are revoked”. He did not sign it and , for that
reason, it could not be attested by witnesses. It could not therefore be regarded
as a case of express revocation by a document. He then kicked the document
across the room where it was retrieved by a maid-servant and instead of
throwing it away, kept it on the kitchen table for about seven or eight years
before the death of the testator. It remained intact, undefaced and not damaged.
The Court admitted the will to probate because there had not been a physical
destruction of it; nor were the written words, without due execution, enough to
revoke the will. The court noted “ All the destroying in the world without

32
intention will not revoke a will, nor all the intention in the world without
destroying. There must be the two.”
Presence of testator: If the will is not destroyed physically by the testator
himself, it must be done by some person on his direction and in his presence.
Consequently, if destruction is undertaken in a manner where the testator does
not physically see the act of destruction, it is ineffective. Equally, destruction must
be accompanied by the appropriate authority to revoke. An unauthorized
destruction does not revoke a will as the necessary intention is lacking. In Gill v
Gill, a wife tore up her drunken husband’s will in a fit of temper. The will was held
not to be revoked as it had not been destroyed at the testator’s direction. In Re
Dadds shows the vital nature of the testator’s presence. The testatrix who was
confined to bed, instructed one of her executors to destroy a codicil to the will.
The codicil was taken to another room and burnt ( in the presence of the executor
and several others) as there was no fire in the testatrix’s own bedroom. It was
held that the codicil was not revoked as the testatrix was not present at the
burning, and the executor and others who knew its contents could not give
evidence as to its content for purposes of admission to probate.
In In the Estate of de Kremer the testator contacted his solicitor by telephone
expressing the desire to make a new will. He asked the solicitor to destroy the old
will which the later did in the testator’s absence. The court said that the solicitor
had committed a professional error and that the will was not revoked.
Mills v Millsward illustrates a further point about ‘destruction’. Shortly before her
death the testatrix showed her will to her sister-in-law who tore it up upon seeing
that neither she nor her husband were to benefit under the will. Having
apologized, the sister in law urged the testatrix to make a new will. She declined
and died without a new will. It was held that the will was not revoked as the act of
destruction did not take place on the authority of the testatrix.
Intention to revoke: The intention to revoke the will, or the animus revocandi, is
essential to a valid revocation. It is a sine qua non. But the intention to revoke is
not alone enough. The animus revocandi and the act of physical destruction must
be concurrent; hence, there is no revocation if the testator had no animus
revocandi at the time of the destruction of the will. A subsequent animus
revocandi is not enough to revoke a will which had already been destroyed. In re

33
Booth , the will was destroyed by accidental fire which burned the testator’s
house. Although the testator probably subsequently acquiesced in the
destruction, it was held that the will was not revoked because it was not
destroyed animo revocandi. Similarly, where a will was torn up without the
testator’s authority, he could not , by subsequent ratification , render the
destruction a sufficient act of revocation of the will. The act and the animus
revocandi were not simultaneous.
In certain circumstances, the courts have drawn a distinction between an
intention to destroy a testamentary document and an intention to revoke a will.
In Brunt v Brunt, testator who was a publican , started to suffer delirium tremens
after he made his will. His medical condition made him liable to attacks of
automatism. He destroyed his will during one such attack, although the mutilated
document was retrieved by the wife and kept in a safe. It was held that the time
he destroyed the will, the testator was not master of his own actions and that,
consequently, the destruction had no effect. In the Estate of Southerden, the
testator prior to undertaking a journey to America made a will leaving all his
property to his wife. Upon his return , the testator destroyed the will with the
words: “This is ..good now. We have safely returned and it is all yours. We might
as well burn it,” mistakenly believing that the wife would inherit all his property
under the rules of intestacy. It was held that the testator had destroyed his will
under a mistaken belief; and as the belief was ..Correct, he did not have the
necessary intention to revoke the will.
In Dowe d Perkes v Perkes the testator had, after a quarrel with a devisee under
his will; started to tear the will in anger. Having torn it into four pieces he was
restrained by a bystander and by the apology of the devisee. He put the will into
his pocket and said “ it is a good job it is no worse.” The will was still in four parts
at the testator’s death. The court held that not every tearing can be regarded as
cancellation of a will; the intended act of destruction must be completed. As the
testator had intended to go further in his act of destruction but had been
restrained, he had not completed the destruction he intended and the will was
not revoked.
Destruction of a will is not automatic revocation of a codicil

34
It was held in In The Goods of Turner that revocation or destruction of a will does
not revoke a codicil to that will.
Extent of Destruction required
The cases suggest that it is not necessary to destroy the entire will. It is sufficient
if a vital part of the will is destroyed in a manner that impairs the whole will. The
cutting off or destruction of signatures of testator and witnesses is considered
vital. Tearing may not in itself constitute sufficient destruction. As shown in
Perkes v. Perkes, the testator tore his will in four pieces , intending to revoke the
will. When he was stopped, he fitted the pieces together and said : “ It is a good
job it is no worse”. The court held that the will had not been revoked as the
tearing was not all the destruction that the testator had intended. Also in Re
Everest ((1975) 2 WLR 333, part of the front page of a will had been cut off. The
court admitted the will to probate in its impaired state.
Destruction of part of a will
Destruction of a non vital part of a will does not affect its validity. But if a testator
destroys his signature, an immediate inference is raised that he intended to
dispose of the whole will. It was held in the In the Estate of Nunn that where a
testator cuts out a piece of a will and stiches the rest of the document together,
only the cut-out part of the will is revoked. However, this will probably not be the
case where the rest of the will makes no sense without the cut-out part. It is likely
that such a will will be held to have entirely revoke. This was indeed the holding
of the Court in Leonard v Leonard where the testator had destroyed the first two
pages of a five paged will and where without the destroyed parts the resto f the
will made no sense. Where only part of a will is destroyed, that part may be
considered sufficiently revoked. In In the Goods of Woodward a testator had
drawn up a will on sheets of paper, signing each paper at the bottom together
with witnesses. However, the first eight lines of the will had been cut off although
the contents were known. As there was no proof of intention to revoke the entire
will, the document was admitted to probate in an incomplete state.

Presumption of Animus Revocandi

35
 1. A will known to have been in the testator’s possession during his life time
but is missing at death is presumed revoked by destruction.
2. A will found mutilated at the death of the testator is presumed mutilated
with intention to revoke.

A will missing at death

As already indicated supra, if a will known to have been in the possession of the
testator cannot be found at his death, it is presumed that the testator destroyed
the will with intention to revoke. The strength of the presumption may well
depend on how secure the will was for the testator. The presumption may be
rebutted on the basis of a wide range of evidence tending to show that the
testator did not intend to revoke the will. House breaking, burglary, civil
commotion, etc, may well rebut the presumption. In Lefebyre v Major, a
Canadian case, the presumption was rebutted when evidence was adduced to
show that the testator had remained on good terms with the major beneficiary
and that the will may well have been lost together with other property of the
testator’s after his death.
Proving a missing will
On the basis of the principle in Welch v Phillips, if the will was known to have
been in the testator’s possession, the court presumes it destroyed by the testator
with the intention of revoking. If a will cannot be found, but is demonstrated not
to have been revoked, such a will can be proved by evidence , of its contents. It is
normally the case that the most competent witnesses in this matter are usually
close family members and frequently, the beneficiaries. Depending on the
circumstances, this may affect the weight accorded the evidence. In Re Booth,
evidence as to the contents of a missing will was given by the wife, to whom a
deceased army officer husband had left his estate absolutely. The will as believed
to have been burnt for sometime before the death of the testator. The wife’s
evidence was ruled admissible and the will was admitted to probate. Similarly, in
Sugen v Lord St. Leonard, a holograph will could not be found at the death of the
testator. Several codicils to the will were available , however. The will was proved

36
solely on the evidence of the testator’s daughter of whom the court said “of her
integrity there can be no doubt.”
Re Webb shows a related point and establishes that a draft copy of a will may be
admitted to probate as secondary evidence of the contents of the will as the
maxim Omnia praesumuntur rite essa acta (ill acts are presumed to have been
rightly and regularly done) would apply in the absence of evidence to the contrary
to suggest that the will had been duly executed. In that case, testatrix’s sister
had found a copy of the deceased’s will in a trunk shortly before the testatrix
died. The testatrix asked her not to throw it away as it was her will. After the
testatrix’s death the original of the will could not be found and a grant of probate
was sought for the copy.
Will found mutilated
As already observed, if at the death of a testator a will in his possession is found
mutilated, a presumption is raised hat the mutilation occurred with intention to
revoke the will. This presumption was applied in Lambell v Lambell. Again the
presumption is rebuttable by evidence of contrary intention on the part of the
testator. The later case of cowling v cowling indicates the existence of another
presumption almost directly opposite to the above, suggesting that a mutilated
will is assumed to be effective and unrevoked unless there is evidence of
intention to revoke. The two cases are difficult to reconcile, but it appears that
the answer in each case may be dependent on the extent of mutilation. On that
basis, slight mutilation will favour the presumption in Cowling v Cowling but
extensive mutilation will arise the presumption in Lambell’s Case. Since a testator
must have capacity to revoke a will, mutilation during insanity will not have the
effect of revocation. If the testator was known to have been insane a burden is
imposed on the party alleging revocation by destruction to show that the testator
was mentally capable when the destruction was carried out.
Words of Revocation included by mistake
Cases under this mostly depend on the testator’s awareness of the legal effect of
including the revocation clauses in the will.
In Re Phelan, the testator was held not to have been sufficiently aware of
revocation clauses which were consequently excluded from probate. In Collins v.

37
Elstone, the testatrix although aware of the presence of the revocation clause in
her will, was unaware of its true legal effect. The clause was held to be valid and
to have disposed of her previous dispositions.
Implied revocation
The general rule of construction of wills is that where there are inconsistent
testamentary instruments, the later in the point of time revokes the earlier to the
extent of the inconsistency. This has statutory force in Ghana by virtue of section
9(4) of the Wills Act, 1971 which says : “A will which is not expressed to revoke a
previous will shall not be deemed to have revoked that previous will except to the
extent that it is inconsistent with the previous will.” Thus, an implied revocation
may result even if no express intention to revoke can be found.
This arises in situations where a subsequent will contains provisions inconsistent
with or repetitive of provisions of a previous will without expressly revoking
relevant previous dispositions or clauses. In such cases the earlier will is revoked
by implication. Two points :
First, the fact that a latter will does not contain a revocation clause does not
necessarily prevent it from being treated as revoking an earlier will. Second, it
bears noting that mere inconsistency will not revoke a previous will entirely. But
the principle that a court prefer a later provision that is inconsistent with an
earlier one was confirmed as a rule of construction in Birks v Birks. The court
reads all provisions of the will together and allows later provisions to prevail over
earlier clauses with which they are inconsistent. In cases of partial inconsistency
or repetition, the court considers it a matter of construction which provision
prevails. The testatrix in Dempsey v. Lawson had made an earlier will. She made
a later one without revocation or residuary clauses. It was held that as she had
intended to replace the earlier will the residuary beneficiaries under that will
receive nothing.
Questions of implied revocation are usually resolved by construing the will and if
necessary , admitting extensive evidence. In In b Bryan the textatrix made a will
leaving, amongst others, a legacy to a niece and a sum of money on trust for her
(testatrix’s) sister for life with remainder to her niece. She made a further will
substantially repeating the earlier gifts but omitting the trusts in favour of her
niece and her children as wll as reducing the niece’s legacy. The later will

38
contained no revocation clause and no gift of residue. Consequently an issue
arose as to whether the niece and her children were entitled to benefit under the
trust under the earlier will since it had not been expressly revoked by the later
will. It was held that upon proper construction it was clear that the testatrix
intended the latter will to supersede the former which was consequently revoked
by implication.
The use of extrinsic evidence to decide questions of revocation by implication was
demonstrated in Methuen v. Methuen. The testator made a codicil to a will,
conferring certain benefits on his wife and children. Following the marriage of
one, his daughters he made a further codicil which recited that he had made
provision for het married daughter, and proceeded to make dispositions to the
wife and the other daughters, different from the terms of earlier codicil. It was
not clear that the dispositions of the codicils were meant to be cumulative , in
which case the deceased’s property would have been insufficient for the payment
of all the legacies he had given. It was held that on account of the doubt arising
form the face of the testamentary instrument the court was entitled to look at
extrinsic evidence relating to the facts known to the testator , and that on that
evidence it was clear that the codicils were not meant to be cumulative.
Mention must be made of the fact that if there are two wills made on the same
date or undated, and it cannot be determined which of them was first executed,
neither of the testamentary documents can be admitted to probate, if the two are
wholly inconsistent. The result is that, if there is no other testamentary
instrument, the deceased will be regarded as having died intestate.
Implied Revocation by codicil
Codicils are frequently made to alter or revoke gifts in a will. If properly executed,
the codicil is effective. However, if it is unclear, the case of Hearle v. Hicks suggest
that the court will tend to retain the provisions of the will. In that case the
testator had left copyhold to his wife for life. He executed a codicil leaving the
freehold and copyhold land to his daughter for life. The court held that the clear
and unequivocal gift to the wife should not be revoked by the more general gift in
the codicil.
Proof of Revocation

39
Once it is alleged that a particular will has been revoked either expressly or
impliedly, evidence , either in the form of a copy of a duly executed later
document revoking the earlier will or in oral form, may be adduced to support the
contention that the previous will had been revoked. Once a codicil or a will is
revoked takes effect immediately. Occasionally, an incongruous situation arises
where a later will or codicil revokes a previous will but that later will or codicil is
itself inadmissible to probate. This occurred in Re Howard where the testator left
his estate to his son. He later executed two further wills on the same day, one in
favour of the son and the other in favour of the wife. Both wills contained a
revocation clause revoking all precious wills. It was held that although the two
wills had revoked the earlier will, they were both inadmissible to probate for
inconsistency and for lack of evidence to show which was executed first. On the
other hand in Re Phelan where a testator had executed a number of wills on the
same day, each containing a clause revoking all previous wills, the revocation
clauses were omitted on grounds of lack of knowledge and approval. It must be
pointed out that the wills in Re Phelan were not consistent with each other.
Imperfect animus revocandi
Imperfect animus revocandi arises where revocation is made conditional upon the
occurrence of other events. In such instances the intention does not mature until
the event specified happens.
Revocation by marriage under Section 18 of the 1837 Wills Act of England creates
a condition where no animus revocandi is necessary for such revocation; for
under that section “ a will shall be revoked by the testator’s marriage” unless
made in contemplation of that marriage. The obvious purpose is to protect and
benefit the testator’s widow in case he forgets to change a will made before the
marriage.
Revocation conditional on the validity of another will or dependent relative
revocation also known as conditional revocation
The above arises where the revocation of a will is made conditional upon certain
matters taking effect. Such a will remains unrevoked if the conditions do not
occur. This principle is starkly illustrated in Re Middleton to the effect that a will
destroyed on the basis of a false belief that it had been replaced by a subsequent
will is still valid and admissible to probate. In Re Jones the court held that

40
revocation was absolute and unqualified as there was nothing to show that the
testatrix believed she had to destroy her old will in order to make a new one. On
the other hand in Dixon v Treasury Solicitor, a testator instructed his solicitor to
draw up a new ill and proceeded to destroy his old will until he had revoked the
old. The testator died before he could sign the new will, ad the court held that the
old will had not been revoked as evidence showed that , but the mistaken belief,
the testator would have allowed the old will to remain valid up until the new will
was executed.
It may further be noted that if a will is destroyed as a result of mistaken belief
about certain facts or about the operation of law, this will not constitute
revocation; for mistaken belief negatives animus revocandi. In Campbell v.
French a will was destroyed in the mistaken belief that two of the main legatees
were dead. It was held not to be revoked as the condition on which revocation
depended had not been fulfilled. Under the principle in In b Horsford conditional
revocation may apply to alterations where a testator obliterates a legacy and
substitutes a new legacy which is unattested or pastes a slip of paper over the
legacy hearing a new figure. In such a case, the old legacy will remain effective if
the court is satisfied that it was revoked only on the erroneous belief that the new
legacy was effective.
Conditional Revocation by Destruction
Generally, where a will is revoked by destruction, it is a question of fact whether
the intention was conditional. In The Estate of Green, having made a will, the
testator destroyed his old will. Upon considering the intentions of the testator
when he destroyed his old will, the court held that the intention to destroy the
earlier will was absolute and that that will was revoked immediately on
destruction.
In Re Jones, the testatrix had formed the intention of making a new will for a
different set of beneficiaries and on that basis had destroyed her old will. It was
held that her intention was to disinherit the major beneficiary under the old will
and that it did not matter that the revocation resulted in intestacy.
Conditional express revocation

41
A revocation clause may be made subject to an express condition in a will,
without which any revocation will not operate. For instance, effective revocation
may be made on the occurrence of specific or ascertainable events.
Conditional Implied revocation
Implied revocation arises where a testator makes a gift of a property which has
already been gifted under a previous will without expressly revoking the earlier
gift or will. It is usually a matter of construction as to whether a gift has been
revoked by implication. In Re Robsinson, a testatrix had given property to her
son and after his death provided for the property to be divided equally amongst
her grandchildren. In a subsequent will, the testatrix gave her estate to the son
absolutely but this was held to be void as the son’s wife was an attesting witness.
The court held that there was no intention to revoke the earlier will or to link it to
any events.
Revocation of Privileged Wills
Privileged wills may be revoked in the same manner as other wills, except that
unless they aer in writing they cannot be revoked by destruction. A privileged will
may be revoked by a further will in writing, whether privileged or not. Revocation
of privilege wills was considered in In The Estate of Gossage; Wood v. Gossage.
The testator had made a previous written will making his fiancée the executrix
and beneficiary of certain properties. While abroad , he asked that the will should
be given to his sister, directing her as to the disposal of his property and asking
that the previous will be burned. After the testator’s death, the fiancée sought to
have a copy of the burnt will admitted to probate. IT was countered that the letter
to the sister had declared an intention to revoke. This was accepted by the trial
court. On appeal, it was held that privileged wills are entirely outside the
statutory regulations of the Wills Act, 1837.
Lord Sterndale MR said :
“There can be no question as to the intention of the testator to revoke his bequest
to the plaintiff, obviously it would be a great injustice if the plaintiff was to take
the property but I hope that the fact does not influence me to strain the Act of
Parliament against her. It is said …that there is no valid revocation here because
by 20 soldier’s will cannot be revoked, though it can be made without the

42
formalities required…This appears to me to be an absurd result, but, however
absurd it is, effect must be given to it if that result arises from the Act. I do not
think , however , that it requires any straining of the language of the Act of
Parliament to arrive at an opposite conclusion . It is quite clear that apart from the
Wills Act; a solider cool at common law make or revoke his will without the
formality…IF one reads 9 and 11 together, no formalities are required for the
execution of a soldier’s will, but soldiers are allowed to dispose of their personal
estate as they might have done before the Act, that is, as they might have done
before the Statue of Frauds.” Younger L.J. added: “…is not required for the
revocation of a soldier’s will, that there should be formalities necessary to revoke
the will of a civilian:”
Again , the issue of revocation of a privileged will arose in Re Booth, although
made in writing, the will in this case would have been considered inadequately
executed if the testator had not been a solider during active service. Although the
document survived the war, it got burnt. The surviving spouse attempted to
propound the will to various objections. the objectors led evidence that the
testator knew that the will was burnt and considered it revoked, but the court
held that mere acquiescence in destruction of the will by fire did not constituted
revocation. And the defendant’s suggestion that the Roman law principle that a
privileged will should automatically lapse by operation of law one calendar year
after the testator’s privilege was declined.
Alteration of Wills and Codicils
A testator may wish to make amendments either before or after the execution of
a will. Although such amendment may be made by codicil, testators frequently
prefer to alter the original document itself. Alteration of a will is strictly regulated
by Section 5(1) f the Wills Act, 1971 which provides as follows :
“No alteration made in a will shall have effect unless it is separately executed in
the same manner as is required for the execution of the will, or unless it has been
made valid by the re-execution of the will or by the subsequent execution of
some codicil thereto.”
It is unclear whether it is the original which witnesses to a will must also sign to
effect the alteration, or whether even fresh witnesses will suffice. Blewitt is

43
authority for the view that the witnesses need only subscribe their signatures to
the alteration.
A problem arises with obliterations in a will which render words or the effect of
the will “not apparent”.
Obliteration usually arise where words are scratched out, scribbled or pasted over
with a strip of paper in a manner which renders them indecipherable. If
accompanied by a requisite animus revocandi such obliteration have the effect of
revoking parts of a will. As was noted by the court in In The Goods of Horsford : “
if a testator shall take such pains to obliterate certain passages in his will and shall
so effectually accomplish his purpose that those passages cannot be made out on
the face of the instrument itself, it shall be a revocation as good and as valid as
one mentioned in the Act.” The cases lay down the test whether words in a will
are “not apparent” (see e.g. In b Ibbetson. ) The vital point is whether such words
can be deciphered by an expert through natural means when the will is inspected
in the condition in which it was left by the testator. Magnifying glass may be use
or the document can be held up to light to aid such inspection. It was observed in
In The Goods of Horsford : “It has not been the practice to adopt any means of
ascertaining what the words attempted to be obliterated were, other than mere
inspection by the aid of glasses. Chemical agents have not been resorted to in
order to remove any portion of the obscuring ink, and I do not think it would be
proper to adopt such means.”
Consequently, it is permissible to employ infrared photography and similar
devices to discover what is beneath the obliteration,. The court refused to admit
the will to probate on grounds similar to this in In B ltter. Although elaborate
devices may be used to assist the eye, such devices should only aid natural means
of inspecting the document and not result in the creation of a new document, for
instance by the production of a photograph of the original. It is necessary that
obliterations are accompanied by an intention to revoke the parts obliterated.
This is the usual presumption once the obliteration has been duly executed. Some
obliterations may be accidental, for instance, through spillage of ink or soap over
the testamentary document. In such instances, the law permits the employment
of every available means to discover the words.
Conditional Obliterations

44
Clauses or words in a will may be obliterated subject to the occurrence of
specified conditions. In such circumstances, the obliteration will have no effect
unless the condition is satisfied. In In b Itter, the testatrix glued strips of paper
over certain amounts in a will and wrote new amounts on the strips. Although
signed the new amounts were never attested and it was impossible to decipher
the figures underneath by natural means. On the issue whether the doctrine of
conditional revocation is applicable, the court held that as the testatrix had not
pasted strips of paper over the names of the legatees the inference should be
drawn that she had intended to revoke the original amounts only if the new
amounts were substituted. Once it is established that only a conditional
revocation is intended, any means may be employed, including the use of
chemicals and infrared photography to discover words beneath the obliteration.
Alteration prior to execution
To be valid, an alteration made before the execution of the will should be final
rather than deliberative. Alterations in pencil are presumed to be deliberative an
invalid, barring evidence to the contrary. This was the case in Re Bellamy’s
Goods. Authority is derived from Cooper v. Bockett for the presumption that
alterations made before the execution of a will, were actually made after
execution, unless the purpose of the alteration was to fill a blank space in the will.
As already observed, alterations made after the execution of a will are invalid
unless they are separately executed.
Although it is presumed that alterations are made after execution, this is
rebuttable(see Cooper v. Bockett). The presumption that an alteration was made
after execution may be rebutted by evidence from the will itself or by extrinsic
evidence. Evidence from the will may take the form of later references to an
earlier alteration. In Keigwin v. Keigwin, the man who drafted the will was
permitted to give evidence. The presumption operates in the case of re-execution
where alterations are made in an already executed will. A codicil has the effect of
republishing an confirming the will. Consequently, parts of the will affected by the
codicil are brought forward and read as though they were made on the date of
the execution of the codicil. The codicil may therefore affect unattested
alterations in the will and render them valid; but another hurdle exists in the form
of a presumption tht any unattested alteration in the will was made after the

45
execution of the codicil . In Re Hay, the court held that a codicil cannot give
effectto an unattested alteration in a will unless the codicil actually mentions the
alteration. This appears to accord with the principle of incorporation by
reference.
Method of execution of alterations
Section 5(1) of the Wills Act 1971 appears to require the presence of the
testator’s signature as well as those of the witnesses for a valid alteration to a
will. Some authority exists in Blewitt’s Case that all witnesses may simply append
their initials. On the other hand in the case of Shearn, the object of insisting on
signatures and attestation is to ensure that the genuine intentions of the testator
are given proper effect , and fraud and undue influence minimized.
Although a codicil may have the effect of re-publishing a will, it does not
necessarily validate an alteration as though it had been done prior to execution. A
codicil only validates an alteration if the codicil in some way makes reference to
the alteration. This was illustrated in Re Heath’s Goods where a testator made an
unattested alteration giving a beneficiary a further legacy of money, additional to
a previous pecuniary gift. A codicil to the will recite that the beneficiary was to
receive a stated figure, being the sum total of the two monetary gifts to the
beneficiary. It was held that the codicil had re-published the will in its altered
form. Had the codicil made no reference to the additional legacy, the gift would
have been invalid as an unattested alteration.
REVIVAL AND REPUBLICATION
Methods and Effects of revival
For various reasons a testator may wish to revive a revoked will rather than make
an entirely new one. Rewriting a revoked will may be tiresome and cumbersome.
The testator may therefore choose to take advantage of Section 10 of the Wills
Act, 1971 which provides that a testator may revive a revoked will by two main
means thus :
“ 10(1) No will or any part of a will which is in any manner revoked shall be
revived otherwise than by its re-execution or by a written declaration of intention
to revive it, executed in the same manner as a will

46
(2) Whenever a will which is partly revoked and afterwards wholly revoked
revived, the revival shall extend to the whole will.
Other methods of revival exist but in Marsh v Marsh, the court held that the
attachment of a codicil to a revoked will by means of a tape was in itself no
evidence of intention to revive the will. further , if a first will is revoked by a
second will, revocation of the second will does not revive the first will, as was
demonstrated in In b Hodgkinson where the court held that an earlier will is not
revived merely by the revocation of a later one. Subsequently, a testator cannot
revive a revoked will simply by revoking the codicil or will which revoked it.
Determining whether a codicil shows the necessary intention to revive a revoked
will may in itself be a complex matter, as was illustrated in Re Baker. There the
testator made two wills, the second will containing an express revocation clause
inconsistent with eth first. She subsequently made a codicil which confirmed the
first will and by implication revoked the second, inconsistent will. This was
followed by yet another codicil which referred to the testatrix’s original will and
codicil. The court held that the final codicil revoked the testatrix’s second will and
second codicil and republished the original will and codicil and that the
dispositions contained in the final codicil were inconsistent with any other
intention.
In Re Dear, the testatrix made a will in 1942, expressly revoking it in 1950. A later
codicil made reference to the revoked will. The question was whether the codicil
revived the original will through reference to it. It was held that reference to the
codicil was insufficient to revive the original will; it only created an ambiguity
which remained unresolved for lack of evidence. In the circumstances, the 1942
will was not revived. A will can only be revived by codicil only where it is still in
existence. Consequently, revival by this means is impossible where the will was
revoked by destruction.
Although the principal effect of revival is to bring the revoked will back into
existence, it has other effects as well. The revived will is read as though it was
made at the date of revival and not the date on which it was executed .
Unattested alterations in the revived will may be affected once the presumption
that they were made after revival is rebutted.
Republication and its effects

47
This term is now largely meaningless since “ publication “ has no longer been
necessary since the Wills Act of 1837 Section 13 of which provided that “every will
executed in a manner herein before required, shall be valid without any
publication thereof.” “publication” was a manifestation or declaration by the
testator in the presence of witnesses that eth instrument produced before them
was his. “Republication” therefore occurs where a testator re-affirms the will,
particularly after the execution of the codicil. IN practice, ‘republication’ amounts
to execution’ or ‘affirmation’s by the testator of the validity and contents of the
will. Republication only occurs when a will is re-executed in lien with proper
formalities. It merely confirms an unrevoked will or codicil whereas revival brings
back a will or codicil. The term ‘republication’ is disapproved by the courts.
Still, the term occurs copiously in the law of wills where it is generally employed
to indicate a confirmation by the testator of his will: Under the current law of
wills, republication occurs in two circumstances : through the execution of a will
or its confirmation through the execution of a codicil. Once either of the above
occurs, “republication” arises if there is evidence in the executed will or the
codicil that in the process of execution or re-execution the testator refers to the
will as his.
In Re Smith, a married woman made a will in favour of a nephew by way o power
of appointment under a marriage settlement. This of course, was o no effect since
it was made during coverture or marriage. After the husband’s death, she
executed another testamentary instrument in favour of her “nephew, Oswald”
but no reference was made to the earlier will. Such reference would have had the
effect of republishing the will after he husband’s death and make it effective.
Therefore, no inferences could be drawn upon which republication could be
based. In Skinner v. Ogle a slight reference to “codicil to my will” was held to be
sufficient.
Republication also has effects on the construction of a will, particularly as it may
have the consequence of altering references to persons and property to the date
of republication instead of the date of the will. Reference to a named or specific
person in a will cannot be changed by republication (see Re Wood’s Will) .
However, reference to the relationship of a testator to a beneficiary may be
altered by republication and indeed republication may have the effect of

48
extending operations of the provisions of a will to persons not even contemplated
when the will was drawn. In RE Hardyman, a testatrix made a will bequeathing a
legacy of 5,000 pounds “in trust for my cousin, his children and his wife…” AT the
time, the cousin was married to a wife who died shortly afterwards. Aware of the
death of the cousin’s wife, testatrix made a codicil without reference to the
bequest of 5,000 pounds. Shortly afterwards the cousin remarried. The question
was whether the gift was for the first or second Wife. It was held that eth will and
the codicil must be read together and on that basis it appears that after
republication the reference to the wife was to any woman to whom the cousin
might marry. Consequently, the second wife was held to be entitled.
Similarly, references to property may be effected by republication. This is
particularly the case in respect to specific legacies which might be considered
adeemed through disposal of the subject matter prior to the testator’s death.
However , mere republication will not revive a legacy adeemed in the meantime
(See Cowper v. Mantell).
Where a testator refers to property in a clear manner republication may affect
the legacy and the republished will will attach to property not already in existence
at the time the will was executed. In Re Champion, a testator made a will in 1813
devising freehold property and attached land “now in they occupation” to
trustees upon trust for sale or the benefit of his wife and children. In 1873 he
purchased two parcels of land adjoining the cottage and occupied them until he
died. He had in 1877 executed a codicil appointing new executors but confirming
the will in every other respect. Issue was whether the two parcels of land passed
with the cottage. It was held that they passed with the cottage, and that upon
construction the testator showed that he had used the word “now” in reference
to the date of the will. Upon republication, reference to “now” want the date of
republication. Therefore the fields passed together with the cottage. Further, in
Re Reeves the testator by his will gave his daughter “all my interests in the
present lease” which at the date of the lease had an unexpired term of just over
three years. After expiration, testator took a new lease on the house and
afterwards executed a codicil confirming his will. It was held that the new lease
passed to the daughter since the codicil had republished the will and therefore
any reference to the lease must be to the new lease.

49
An unattested alteration to the will made after execution but before republication
is admitted to probate on the presumption that it was made after the execution
of the codicil. This presumption is however rebuttable. Republication may also
effectively incorporate documents not already in existence when a will was made,
proving all other necessary conditions required for incorporation are satisfied. An
ineffective will or codicil which was not properly executed may also be
incorporated into a codicil by reference. Also , where a will fails because a witness
to the will benefited under, such failure can be remedied by republication,
proving other individuals act as witnesses of the republished document(see
Anderson v Anderson)
PRIVILEGED WILLS
There are two common forms of special wills : the soldier’s will and statutory will
made for the mentally incapable. Such wills are made for mentally disordered
persons lacking testamentary capacity. The purpose is to prevent irremediable
intestacy for such persons, some of whom may have never enjoyed testamentary
capacity or have lost capacity.
The focus here is the soldier’s privileged will.
Absence of formal requirements :
The formal requirements prescribed in Sections 1, 2 and 5 of the Wills Act, 1971
for making statutory wills do not apply to members of the armed forces while ‘on
active service.’ Instead, Section 6 of the Wills Act, 1971 provides for members of
the armed forces to make wills without the usual formalities. In essence, a
member of the armed forces may make : (a) a holograph(handwritten will)
without attestation or (b) a nuncupative (oral) will attested by two witnesses, and
(c) a soldier may also make a written will attested by one witness only. However, a
privileged testator must still possess testamentary capacity and intention;
namely, the will must be made animo testandi, it is unnecessary that the
deceased is aware that he is making a will. IN RE STABLE, the words “ If I stop a
bullet, everything of mine will be yours’ was held to be a privileged will.
Who is a soldier?
Section 6 of the Wills Act, 1971 states:

50
6(1) Notwithstanding any provisions of this Act to the contrary, any member o the
Armed Forces of whatever age may, while engaged on active service, make a will
in any of the following forms :
a. written and unattested, if the material provisions and signature are in the
handwriting of the testator;
b. written (whether or not in the handwriting of the testator) and attested by
one witness;
c. orally before two witnesses;
(2) Any beneficial disposition of or affecting any property other than charges
or directions for the payment of debt, given by a will made under this section
to a witness of that will, shall be void unless the will is duly executed (if
written) or witnessed (if oral) without his attestation and without that of any
other person.
(3) A will made in accordance with this section shall remain valid even though
the testator ceases to be a member of the Armed Forces.
(4) A will made in accordance with this section may be revoked by another will
made in accordance with this section or by any of the means of revocation
provided in section 9.
(5) A will made in accordance with this section may revoke an earlier will made
by the testator in accordance with section 2”
It is considered that the reason for this privilege is hat members of the armed
forces on active service are placed in real danger and situations where they
may well face death daily. Consequently, it is appropriate to provide legal
facilities or simple forms of testation in a variety of situations conformable
with the risks of the combat soldiers life. However, Lord Denning said in RE
Wingham : “ It would be great mistake , however, to argue therefrom that a
soldier ; who is not in danger, or who has legal advice at his elbow, cannot
make a soldier’s will.” Consequently, an airman who died during a training
exercise in Canada in the course of the Second World War was held to have
been on actual military service.
The courts have given the term ‘soldier’ a broad meaning applicable to all
divisions of the armed forces, including infantry, navy and air force. It also
51
includes both full time professional soldiers and party time soldiers and applies
to typists, nurses, etc. Under section 114 of the Armed Forces Act, 1962 (Act
105) ‘armed forces ‘ is defined to mean “the Army of Ghana, Navy o Ghana
and Air Force of Ghana.” Lord Denning said in Re Wingham ‘soldier’ includes ‘
not only the fighting men but also those who serve in the Forces , doctors,
nurses, chaplains and so forth.
In Re Hale, Sarah Hale, a typist on a naval vessel wrote a letter to her mother;
including testamentary dispositions, prior to setting of on her last voyage. the
letter was held to be admissible as a sailor’s will. Equally , in In the Estate of
Ada Stanley, after receiving orders to re-embark on duty during the First
world War, a nurse signed and dated a letter in which she gave her niece ‘full
liberty to deal with’ her affairs and described how she wished her property to
be disposed of in the event of her death. The document was admitted to
probate on the ground that she had been a soldier’.
The term excludes soldiers quartered at barracks during times of peace,
although fully performing duties and undertaking training activities associated
with the army. In Re Limond the privileged testator, while mortally wounded
by a sniper’s bullet, dictated a will to his brother-in law. Signed and attested by
two witnesses, the will was held to be valid as the testator was on ‘actual
military service’ when he dictated it to his brother –in-law.
IN Re Jones (1981) 1 ALL ER 1 , the deceased had ben a serving soldier in
Northern Ireland who was shot by an unknown gunman while on patrol duties.
On the way to the hospital the ha uttered to two of his comrades: ‘If I don’t
make it, make sure Ann gets all my stuff.’ Ann was the fiancée; the deceased
died the next day, having also let a previous written will in which he had left all
his property to his mother. The court held that the deceased was a soldier on
actual military service, and that his statement on the way to the hospital
amounted to a privileged will. It appears that the critical test is not the nature
of the enemy, but rather the nature of the activities of the deceased and those
with whom he associated.
A privileged will may revoke a formal will. This was the holding in In b Gossage
where a letter from the testator directing that her will be burned ‘for I have
already cancelled it’ was held to be adequate. Finally, on the basis of the

52
holding in In B Tweedale alterations in a privileged will made in writing are
presumed to have been made during the privileged occasion and will be
admitted to probate.
Duration of Privilege
Under Roman law a soldier’s privilege ceased to operate within a year of
demobilization. This is no longer applicable. However, where after the
cessation of hostilities troops are still left in occupation of foreign territory, the
soldiers may come within the privilege or as long as the occupation lasts. In Re
Booth , it was held that the rule of Roman law that a soldier’s privilege ceases
one year after the cessation of hostilities, did not apply to English law.
INCORPORATION OF DOCUMENTS
Under the doctrine of incorporation by reference, documents which satisfy
certain conditions are regarded as forming a part of the will, even if such
documents are unattested. Such a document is then read as one with the will.
Section 4(1) of the Wills Act , 1971 provides : “ A will may not incorporate
another document unless that document was in existence at the time the will
was executed and is sufficiently well identified in the will.” A will may
incorporate other documents on grounds of practical necessity; and or
purposes of precision and certainty a testator may in the course of drawing up
his will make reference to vital equivocation equdocuments relating to his
property and include either portions or terms of those documents in the will.
Again, as documents may be bulky or not easily lend themselves to easy
reproduction, it may be undesirable to write out the terms of the document as
part of the will. The probate doctrine of incorporation by reference permits
the document to be part of the will without the need to reproduce or write it
out fully In practice, the value of this doctrine is almost limited to cases
involving complicated points of detail. On the authority of Re White, Knight v.
Briggs, a revoked will may be incorporated by reference in a later will rather
than being revived. Three conditions are necessary for successful application
of the doctrine of incorporation by reference :
Document must be in existence at the time the will is made: It is vital for
incorporation by reference that the document being incorporated by

53
reference actually exists at the time of incorporation . The above requirement
stops a testator from making future unattested testamentary dispositions.
Documents made after the point of incorporation fail under this requirement.
Singleton v. Tomlinson is the leading case on this point. The testator made a
will, inter alia, directing his executors to sell four named pieces of landed
property detailed in a schedule attached to the wil, made in the testator’s
handwriting and bearing the same date as the will. Witnesses to the will did
not remember seeing the schedule at the tiem of execution. The court
considered whether the schedule could be referred to in order to identify the
landed estates accurately. It was held that it had not been adequately proved
that the schedule was in existence at the time the will was executed and
consequently, it could not be regarded as incorporated into the will for it to be
relied upon in the process of construction.
Documents must be referred to as being in existence:
The basic rule is that unless properly executed in accordance with formalities
prescribed by the Wills Act, 1971, a document cannot constitute part of the
testator’s will. However, such a document may be incorporated by reference
in the will in a manner in which it can be considered to have been in existence
at the time the will was made. Reference to a document to be made in future
will not suffice. In University of North Wales v. Taylor , a will made reference
to terms and conditions relating to a gift as “one contained in any
memorandum among my papers written and signed by me.” A memorandum
was found in the testator’s papers dated prior to the will, but it could not be
incorporated. Incorporation by reference was declined where the will had
referred to “any existing or future memorandum signed by me”. (see B
Sutherlan) . In Palin v. Ponting , the words “see other side for completion”,
written on a page of a will, were held adequate to incorporate the other page
by reference.
Documents must be clearly identified in the will:
To avoid the document to be incorporated being mistaken for another, the will
should identify it clearly. Consequently, a vague reference cannot effect
incorporation. The court described identification as the very essence of
incorporation in Croker v. Marquis of Hertford where a testator had referred

54
to documents numbered 1-6 in his will, and the will had been found in the
testator’s drawer together with other papers rendering it difficult to clearly
identify the document under the reference. Probate was reused on account of
the danger of mistake. Parole evidence is admissible to identify a document for
incorporation by reference. The textatrix in Allen v. Maddock ah assumed the
name of Foote after separating from her husband. A will executed under this
name was invalid for breach of formality. A subsequent codicil contained no
reference to the previous will and did not even include the name of the
testatrix. An attempt was made to adduce parol evidence for het purpose of
identifying the will for incorporation into the codicil on the basis o which the
Privy Council said :
“the authorities seem clearly to establish that where there is a reference to
any written document, describing it as then existing, in such terms that it is
capable of being ascertained, parol evidence is admissible to ascertain it,
and the only question then is, whether the evidence is sufficient or the
purpose…The facts on which we rely are beyond all question admissible in
evidence, namely that the paper in question was written by eth testatrix,
was found locked up in her possession at her death in a sealed envelope ,
on which there was an endorsement describing it as her will; and tht after
diligent search on other paper has been found answering the description.”
Effect of Incorporation
An effectively incorporated document is admissible to probate as an integral
part of the will. As an incorporated material constitutes part of the probate
document and is consequently available for public scrutiny , incorporation by
reference is not recommended for testators who wish to keep their affairs
secret. Incorporated documents are filed with the will in the probate registry;
but I they are too large, filing may not be necessary; this was the case in In b
Balme. Incorporation may also have the effect of saving an invalid will with an
attached codicil . In that circumstances het will must be clearly identified and it
needs to be shown that the codicil refers to the will as being in existence.
There is authority in Re White for the view that an earlier will may be
incorporated by a later will or codicil.

55
 In rare cases the court may admit extrinsic evidence to decide whether the
testator intended incorporation by reference; this was the case in In the
Estate of Saxton where a will without dispositions had been put in an
envelope together with several lists containing beneficial dispositions. The
court considered the circumstances in which the will was made and held that
the fact that the lists started with “I wish to leave the following amounts”
indicated that there had been a valid incorporation by reference.
CLASSFICATION AND FAILURE OF GIFTS UNDER A WILL
Personal representatives may be faced with a peculiar problem upon
attempting to distribute the testator’s property among the named
beneficiaries as they may discover that het estate is insufficient to satisfy the
claims o the beneficiaries. This usually arises from the operation of the
doctrines of (1) ademption and (2) abatement. Under the concept of
ademption a specific gift designated or a particular beneficiary may no longer
be available at the testator’s death; and under the doctrine of abatement what
remains of the testator’s estate after just debts have been paid may no longer
be of sufficient value to satisfy all the legacies and devises stipulated by the
will. By the doctrine of abatement, legacies reduce proportionately.
Consequently, if a will gives X 8000 shares and Y 4000 shares in the estate but
there are only 6000 shares, X gets 4000 shares and Y gets 2000 shares
proportionately.
Under the law of wills, gifts are classified as general, specific or residuary. The
Categorization of legacies gives rise to peculiar difficulties , particularly as the
treatment o a particular legacy may depend upon the category it falls into.
Regarding the nature of legacies, Viscount Haldane observed lucidly in Walford
v. Walford “Legacies are of three kinds: there is the specific legacy which is the
specific res secured under the testator’s will on his death; and of course, it
does not abate I the rest of the assets are insufficient for the payment of
general legacies, but it has this advantage , that if the particular res which is
the subject o the specific legacy disappears in the meantime, the legatee gets
nothing. The class of legacy at the other extreme is a general legacy which
comes out of the residue and which abates if the residue is insufficient, but
which, prima facie, under a rule of administration of the court, carries interest

56
as from a year after the testator’s death. There is an intermediate class of
legacy , namely a demonstrative legacy which is simply a general legacy, with
the quality attached to it that it is directed to be paid out of a specific fund,
and, if there is a shortage of assets and that fund remains, is paid out of that
fund without abating. On the other hand I the fund does disappear, then it has
this advantage over a specific legacy, that it is still payable , in virtue of its
quality of a general legacy, out of the testator’s residue along with other
general legacies.”
Specific Legacies
A specific legacy is a gift under aw ill of a particular or specified part of the
personal estate of the testator. The will is then construed to determine
whether the testator intended the particular piece of property to pass in
specie to the beneficiary ; namely, whether the testator intended the physical
item of property itself to pass. The gift of “ my collection of miniature bronze
sculptures to Charles” constitutes the gift of a specific legacy. It is necessary
that eth gift be clearly described and distinguished or severed from the rest o
the testator’s estate. As specific legacies are liable to fail by ademption , courts
usually lean against fading that a particular gifts is a specific legacy, preferring
to find that it is general. From another point of view, however, a specific
legacy is more advantageous to the legatee, particularly as they do not abate
on account o insufficiency of assets until all the property available for general
gifts have been exhausted.
The essential nature of a specific legacy was sated by Jessel MR in Bothamley
v. Sherson as follows : “In the first place it is a part of the testator’s property.
A general bequest may or may not be part of the testator’s property. In the
next place, it must be a part emphatically, as distinguished from the whole. It
must be what is sometimes called a severed or distinguished part. It must not
be the whole, in the meaning of the totality of the testator’s property, or the
totality of the general residue of his property after having given legacies out of
it.”
Re Willocks is authority for the view that gift of a particular item, for instance
shares, is not a specific legacy if nothing else in the will shows that the testator
was referring to his own shares.

57
Although the gift of money out of a stock is demonstrative a non-specific (see
bDeane v. Fest) , a gift of a part of a specified sum is according to the holding
in Ford v. Fleming specific. Similarly, a gift o the whole of the testator’s
personal estate is specific. This was the holding in Roffe v. Early. But where a
testator gives personal estate to a beneficiary subject to exceptions, such a gift
is not specific (see Robertson v. Broadbent). When a bequest is either
followed or preceded by a listing of particular articles, such a bequest is
according to Bothamley v. Sherson not specific. The opposite may be the case
where the listing of articles is preceded by a gift of the residue, according to
Bethune v. Kennedy ; such a gift may be specific.

General Legacies
A general legacy is a gift which is not of a specific part o the testator’s estate;
and is not fixed upon any particular item of the testator’s property. Such a gift
need not even be part of the estate. In Bothmaley v. Sherson, Jessel MR
stated that in that case the testator testator’s “executors must raise the
money or stock”. As already observed, courts tend to lean in favour of general
legacies on account o the doctrine of ademption. Therefore in cases of doubt,
judges tend to take the view that the gift is a general , rather than specific ,
gift. This was illustrated in Re O’Connor where the testator bequeathed 10,000
1poun preference shares in his company to his son but in a later clause in the
will bequeathed a number of pecuniary legacies. However, the testator had
only 9,000 preference shares in the company when he died. He was trustee of
25, 000 preference shares under a family trust an owned a further 85,000
ordinary shares. The court held that the gift to the son should be treated as a
general legacy on account of the following :
1. There was nothing in the gift describing the shares as the specific properties
o the testator; and
2. Because on the evidence the testator never owned 10,000 preference
shares.

58
Gifts of stocks and shares tend to be general gifts, unless the testator specifically
describes the particular shares in a specified company. Where a testator makes a
gift o a property he does not own by way o a general gift, it may be fulfilled by the
personal representatives purchasing the property for the beneficiary with funds
from the state.
Demonstrative Legacies
A demonstrative legacy is a hybrid between a specific and a general legacy.
Although a general legacy in character, there is always a particular fund or pool of
property out of which a demonstrative legacy is to be satisfied. For instance,
“Give 100, 000 out of my Ghana Commercial Bank, High Street account to
Mensah” is demonstrative. A demonstrative legacy is considered dual in character
since it specifies both payment and indicates the fund out of which such payment
is to be effected. Demonstrative legacies operate as specific legacies unless they
fail on account of the unavailability of the property specified. Consequently , in Re
O’ Connor where the testator had directed that gift should be satisfied only out of
specified property, the court held that it could not be a demonstrative legacy as it
is an essential characteristic of a demonstrative legacy that it operated as a
general legacy if the fund was insufficient.
pecuniary legacies
This is a term employed in reference to a legacy of money which may be general ,
specific or demonstrative. A general pecuniary legacy may simply be a stated sum
of money; a demonstrative one is usually directed to be paid out of a particular
bank account; and, a pecuniary gift out of a piggy bank kept in the testator’s
bedroom can be construed as a specific gift which fails if nothing is found in the
piggy bank. Indeed in Re O’Connor it was held that the term ‘pecuniary legacy’ is
insufficient as it is necessary to ascertain whether the particular gift is specific,
demonstrative or general.
TYPES OF DEVISES
Devises refer to gifts of the real estate of the testator and are divisible into
specific and general or residuary devises. Devises are usually specific.
SPECIFIC DEVISES

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A gift of land or real property is a specific devise under a will. To be specific , the
gift must be so described as to distinguish and separate it from the rest of the
testator’s estate. A specific devise passes all burdens and benefits of the
property to the beneficiary. “My land 22 Commercial Street, Cantonments” is a
specific devise.
Residuary Gifts
This may, by way o reclassification, be considered a fourth type of gift. It is a gift
of property by way of general, non-specific description. For instance, “I give all my
lands to A” or “ B should have all my houses”. It is often urged that all effective
wills should have a provisions for the application of residue, and should anticipate
all reasonably possible events leading to failure of gifts, such as pre-decease or
divorce. Indeed, most wills end with a residuary gift such as “I devise and
bequeath all the residue of my property to Ellen.” In the absence of contrary
intention such a gift includes all properties which have been ineffectively disposed
of by the preceding clauses. It includes also all properties which the testator had
made no attempt to devise or bequeath specifically as well as those comprised in
an attempted bequest or devise but which had failed by reason of lapse and other
acts. According to Section 7 (6) of the Wills Act, 1971 (Act 360) , “ a residuary
disposition shall include property comprised in lapsed and void dispositions ,
unless a contrary intention appears from the will.”
The residuary gift comprises the remains of the estate after the payment of all
debts and liabilities and legacies and devises have been taken into account. In the
event of a lack of a residuary gift in a will, or the residuary gift fails, all properties
undisposed of by the will fall into partial intestacy. A similar result is produced I
the residuary gift itself fails. In Quarcoopome v. Quarcoopome (1962) 1 GLR 16
the court stated : “ The will made no disposal of the residuary estate, with the
consequence that the share which each child enjoyed during his or her life,
descended upon his or her death as upon the intestacy of [the testator], the
Original owner. Such shares cannot pass under the will of any of the life tenants
and cannot pass to eth successor of any of them upon intestacy.”
Annuities
An annuity is a gift of money payable in instalments. It was described in Re Earl of
Berkeley as “ a series of legacies payable at intervals”. An annuity may be specific
60
and therefore liable to fail by ademption; demonstrative; or general, depending
on the verdict o the court of construction. An annuity is payable rom the date of
the testator’s death, and if the testator had merely directed the purchase of an
annuity, the annuitant may take the purchase price instead. Annnuities are of
three types .
Specific Annuity : This refers to a gift form an annuity already in existence before
the testator’s death. To be of any relevance, the annuity must continue beyond
the death fo the testator. Consequently, such annuities tend to be perpetual or
are charged on land as are not charge.
general annuities : These are payable out of the testator’s general estate and
may spring from a clause in the testator’s will of the following nature : “I give to C
during his life annuity of 1,000,000 payable in equal monthly instalments.”
Demonstrative annuities : These are general annuities payable principally out of a
specific fund. Problems associated with annuities were discussed in RE Coller’s
Dee Trusts and RE Croxon and relate to whether an annuity is payable out of
capital if the income is insufficient. The holding in Re Coller’s Deed Trusts
suggests that capital can be resorted to if the income is insufficient as the annuity
is regarded as a charge on the whole fund. On the other hand, Re Croxon suggests
that where the annuity is charged on both capital and income and a deficiency
has occurred in the capital in any particular year, there is no right to recoup
capital out of future income.
If an annuity is given “to Y”, it is for a lifetime only (see Blewitt v. Roberts).
However, an annuity to an organization capable of indefinite existence is prima
facie perpetual (Re Jones ).
There are a number of exceptions to the rule that an annuitant is not entitled to
the capitalized value. For instance, where the testator directs that an annuity be
purchased or a particular person for his life. ( see Stokes v. Cheek) . The
justification appears to be that the annuitant can always sell the annuity once it
has been bought for him. Also, where the trustees of an estate have power to pay
the purchase money o the annuity to the annuitant. And, finally, where the estate
is insufficient to pay pecuniary legacies in full and to secure the annuities, the
annuitant may receive the capital sum calculated on the actual value of the
annuity, making allowance for abatement or shortfalls on legacies and the

61
annuities. The dates on which annuities are payable begin, subject to directions
by the testator as to when annuity should be paid, to run from the death of the
testator. According to Re –Earl of Berkeley no interests are payble on arrears of
an annuity unless the fund holders are at fault for the non-payment.
The doctrine of ademption
This relates principally to a specific legacy, a specific devise or an annuity. Such
gifts fail by ademption if it is discovered that at the testator’s death the subject of
the gifts have been sold, destroyed or converted into something else by the
testator. Consequently, a gift of specific furniture is adeemed if the testator sold
them during his lifetime or they are sold during or at the testator’s death (see
Ashburner v. MacGuire). It follows that the devisee or legatee receives neither the
property itself nor the proceeds of sale, if the property was sold before the
testator’s death. Even where chattels are insured legatees have no right or claim
to the insurance money (see Durrant v. Friend). Similar rules apply to a specific
device of land which the testator sells afterwards. But these may be affected by
notions of trust which may be impressed on the proceeds from re-investment.
The doctrine of ademption applies regardless of the testator’s intentions.
Consequently a codicil republishing the will cannot pass to the legatee anything
into which the gift may have already been converted. Ademption may occur by
operation of law if the subject matter of the will disappears from the testator’s
estate as a result of nationalization. The disappearing property is literary replaced
by a lingering question as to whether the beneficiary is entitled to whatever
compensation is available. This occurred in Re Galway where after making his will
, rights in a coal mine were expropriated by statute providing for the payment of
compensation. The issue was whether the beneficiary was entitled to
compensation in place of coal or whether the compensation was a separate
personalty falling into the residue. It was held that the specific gift o the
nationalized property would fail by ademption, if there was no contrary intention
in the will sufficient to pass the compensation on nationalization instead o the
property which had been nationalized.
Ademption of Specific Legacies of Stocks and Shares
Where the testator sells part of all of his securities the gift will adeem either
separately or pro tanto and is not redeemed by the act that the testator buys or
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purchases replacement securities which are not the specified gifts ( see RE
Gibson). However where the property remains substantially the same in spite of
a change in form and name, no adepmtion occurs (see Re Leeming and Oakes v
Oakes and Re Clifford).
Ademption of Specific Legacies of debts : A specific bequest of a debt, if wholly
or partially repaid during the testator’s lifetime, adeems either wholly or pro
tanto. The debt may be owed by the beneficiary.
Ademption of specific legacies of chattels at a particular location
Difficulties arise where chattels of a particular house once bequeathed are
subsequently removed to another place. Questions in relation to this often turn
on whether the place is merely an additional description of the items or a
substantive part of the bequest. If the items are removed merely temporarily for
instance for the purpose of the renovation of the place. The gift will not adeem
(See Domville v. Taylor). A gift of furniture in a specified house passes any
furniture that is placed in the house. (See Rawlinson v. Rawlinson). In Land v.
Devaynes the court held that a bequest of items at a particular location passed
the items and the place was merely an additional description and not part of the
gift. In Re Zouche question arose as to when an item is permanently or
temporarily remove. This was in regard to books hat ha been sent to the British
museum and items sent to the bank or safekeeping. It was held that the period
for which the items had been taken out of the house would normally show
whether they were no longer part of the contents of the house and had
consequently adeemed. A contract for the sale of property may lead to
ademption. It is not necessary that the process of transfer of the property be
complete prior to the testator’s death; proof of the contract alone is sufficient for
ademption. The legatee may however enjoy the property until completion of the
sale (See Re Edwards and Townley v. Bedwell).
Ademption of Annuiteis, demonstrative and general legacies
Since these are to be provided out of the general estate they are not subject to
ademption (Bothamley v. Sherson) where the testator however indicates that a
particular demonstrative gift is to be paid out of a specific fund, the gift will
adeem if the fund is found to be insufficient or non-existent.). Such ademption is
either whole or pro tanto (Paget v. Huish)
63
THE CONCEPT OF LAPSE IN THE LAW OF WILLS
Lapse occurs if the beneficiary predeceases the testator. Beneficiaries who die
before the testator cannot ordinarily claim any benefit under the testator’s will as
they will be non-existent when the will takes effect. Similar rules apply to
institutions which come to an end before the testator dies On the other hand, a
legatee or devisee who outlives the testator is entitled to the gift even if he dies
prior to execution by the executors. In that event, his personal representatives
receive the gift on behalf of his estate. According to section 8(1) of the Wills Act,
1971, “A disposition made to a person who predeceases the testator or which is
contrary to law or otherwise incapable of taking effect shall lapse and fall into
residue, unless a contrary intention appears from the will.” The case of Elliot v
Davenport illustrates the general point. Gifts may also lapse through disclaimer
and for such other reasons as the witnessing of a will by a beneficiary. A devise or
legacy lapses as a consequence of the ambulatory nature of a will precisely
because a testamentary document has no effect until the death of the testator,
the earlier death of a beneficiary causes the gift to lapse. In cases where the gift
is made to several individuals as joint tenants lapse will not occur until all the
beneficiary predecease the testator (See Morley v. Bire). Equally, where a gift is
made to a number of joint tenants , some of whom witnessed the will, the gift
may fail on account of such witnessing. But surviving joint tenants who did not
witness the will may be entitled to the share of those beneficiaries who
witnessed the will (See Young v. Davies). In the case of class gift where
membership is to be ascertained at the date of the will or afterwards, the
doctrine of lapse will not arise. It does not matter whether the gift is to joint
tenants or tenants in common. Also in the case of a power of appointment
exercised under a will it is necessary that the appointee survives the done
otherwise the power lapses (See Duke of Marlborough v. Lord Godolphin ).
The doctrine of lapse operated in Quarcoopome v. Quarcoopome (1962) GLR 16
to prevent the heirs of deceased beneficiaries from benefiting under their
grandfather’s estate. Ollennu J. said
“It follows that upon the death of the testator the property vested in those
children who survived him, and those children took as tenants in common holding
in equal shares, each for his or her life. The evidence in the case shows that nine

64
of the devisees named in the will survived the testator, their father, and that four
of those nine children of the plaintiff have since died. Therefore the life interest
which each of such children had, died with him or her, and the shares which each
child had fell into residue.”
Josiah, submits that the holding in the above case will now be subject to the
provisions of Section 8(2) of the Wills Act, 1971 provides thus :
“Notwithstanding subsection (1), a disposition by a testator to his descendant
(other than for an estate determinable at or before the death of that descendant)
shall not lapse where that descendant predeceases the testator leaving issue
surviving the testator, but shall take effect as a disposition to such issue persists,
unless a contrary intention appears.”
Lapse cannot be avoided by a declaration that the gift should not lapse , unless
the gift is to go to the estate of the legatee (see Re Ladd). Even here, the gift will
not lapse if there is a clear substitutional gift. A codicil republishing a will will not
save a gift from lapse if the beneficiary had predeceased the testator. This is the
case even where the codicil was made after the death of the beneficiary. (See
Hutcheson v. Hammond). Republication can however change the construction of
a testamentary document. To illustrate, it was held in Re Hardyman that
Republication of the will had changed the construction of “in trust for my cousin ,
his children and his wife” to include any person whom the beneficiary might
marry. Although the words had originally been used in reference to a living wife,
republication had altered it to include any wife. This is particularly so as the first
wife had not been named in the will.
COMMORIENTIES OR THE STATUTORY PRESUMPTION OF SURVIVORSHIP
Under section 7(7) of the Wills Act ,
“where a testator and a beneficiary under his will die in circumstances :
(a) in which it appears that their death were simultaneous; or
(b) rendering it uncertain which of them survived the other, the beneficiary
shall be deemed to have survived the testator for all purposes affecting the
entitlement to property under the will of that testator; but for the purposes
of the entitlement of such testator to that property under any will of the
aforementioned beneficiary , that beneficiary shall be deemed to have
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 survived the aforementioned testator , unless a contrary intention appears
from the will. “
Section 7(7) therefore creates a two –step principle of fictional survivorship in
case of the simultaneous deaths of testator and beneficiary where one or both
had made a will. First, the beneficiary is presumed to have survived the
testator and ; second, the testator is, in turn , presumed to have presumed to
have survived the beneficiary. The provision in section 7(7) saves the gift from
lapse.
It is not necessary that testator and beneficiary die in the same event. One
may have died on the operating table an the other through civil commotion .
The important thing is that death occurred so closely that it is difficult to
ascertain who died first.
Lord Macmillan noted in Hickman v. Peacey
“Can you say for certain which of these dead persons died first? If you cannot
say for certain, then you must presume that the older died first. It is
immaterial that the reason or your inability to say for certain which died first
is either because you think they died simultaneously or because you think they
died consecutively but you do not know in what sequence.” In that case, a
number of persons who had executed wills in favour of each other died
together in a bomb blast. Counsel had urged that het evidence showed that
they all died together simultaneously and consequently the legacies had
lapsed.
GIFTS TO DISCHARGE A MORAL OBLIGATION
A gift to a beneficiary intended to discharge a moral obligation indicated in the
will does not lapse if the beneficiary predeceases the testator. The court infers
that the gift was intended to go to the estate of the beneficiary.
FAILURE OF GIFTS THROUGH UNCERTAINTY
A gift may fail for uncertainty if it is impossible to identify the subject matter of
the gift. In RE Barlow (1979) WLR 278, and Re Grant (1980) 1 WLR 360
certainty of “family and friends” and “Labour Party Property Committee”
respectively was discussed extensively. In all cases the court strives to construe

66
the will in a manner that makes it effective. A bequest to a charity never fails
for uncertainty, although the objects of the gift may not be indicated. It is,
however, important that such gifts should be for charitable purpose only.
Consequently, in Chichester Diocesan Fund and Board of Finance v. Simpson, a
gift for “charitable and benevolent purposes “ was held as not to be valid as
not being exclusively charitable.
FORFEITURE
As a matter of public policy, commonly referred to as the “forfeiture title” a
killer is not permitted to benefit from his crime. This was the case in Re
Crippen where a husband was prevented from inheriting money from a wife
he had murdered. The court noted :
“It is clear that the law is, no person can obtain or enforce, any rights resulting
to him from his own crime; neither can his representative claiming under him
obtain or enforce any such rights. The human mind revolts at the very idea
that any other doctrine could be possible n our system of jurisprudence.”
The forfeiture rule also prevents the killer from benefiting under the rules of
intestacy (see Re Sigsworth). However, it appears that the forfeiture rule may
not be applicable to certain categories of manslaughter involving unintentional
killing. Re Gills (1972) Ch 544 is authority for the view that it is equally
inapplicable to cases of manslaughter on grounds of diminished responsibility.
DISCLAIMER
A beneficiary may disclaim or renounce his interest under both will and
intestacy. But he is always at liberty to retract. The rejection of one gift does
not prevent or disqualify the beneficiary from claiming another gift under the
same will unless the two constitute part of a single bequest or the will itself
disallows selective disclaimer of combined gift. Romer, J, sadi in Re
Cranstoun’s Will Trusts “What, then , is the position of a person who
renounces a legacy and then thinks better of it on the hypothesis that no one
has taken any steps to alter his position in consequence of that renunciation?
In the absence of any authority , I should have thought that was open to
anyone at any time to change his mind, when no one has acted to his hurt on
the faith of the renunciation.”

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Disclaimers may be made at anytime provided the beneficiary has neither
accepted the gift nor derived any benefit from it. Although disclaimers are
usually made by deed, this need not be the case as a disclaimer can equally be
effected by conduct , word of mouth or simple writing. IF the disclaimer is
effective the gift becomes a nullity with the same consequence as a lapsed
gift. As a result, if the gift is specific it falls into residue; and if it is residuary, it
passes on to intestacy. Once made, a disclaimer relates back to the date of
death.

EFFECT OF FAILURE
The consequence of failure is that devisees and legacies fail either into the
residue or go into intestacy. Failure may also invoke the doctrine of
acceleration under which a testator is presumed to have intended an
acceleration of subsequent interests where a prior interest fails (see Re Kebty
Fletcher’s Will Trusts)
APPLICABLE EQUITABLE DOCTRINES
Conversion
Conversion is of two types : actual and notional. As was earlier on stated, the
doctrine of ademption under which a beneficiary to whom specific property
has been given under a will is nevertheless entitled to nothing in the case of
disposal, destruction or the conversion of that specific property into
something else. It is worth noting once more that the doctrine of ademption
flows from the ambulatory nature of a will. Ademption is clearly a case of
conversion.
Actual conversion
Actual conversion occurs principally through the sale by a testator of property
he had already given under a will. As a result of the sale, title to the property is
no longer vested in the testator. And as the property is no longer his, he loses
the right to give it away under his will. More fitting with the concept of
conversion one may conceptualize such property as having been converted
into money through sale; consequently, as the gift specified in the will is not a

68
gift of money but a specified property, the gift fails and is no longer available
to the beneficiary, legatee or devisee.
Notional Conversion: Notional conversion occurs even before a proposed sale
of a gift already given away by a will occurs. Once there is a compellable duty
to sell, equity considers the gift to have been notionally converted. AS a result,
once a binding contract of sale exists, equity treats the testator’s interest as
though it were money. The above follows the maxim that “equity considers as
already done that which ought to be done.” Where however, a testator
confirms or republishes his will after contracting to sell the property such
confirmation constitutes sufficient evidence of the testator’s intention to oust
the equitable doctrine of notional conversion. This is clearly the case because
confirmation of a specific devise or gift by the testator in full knowledge hat he
had undertaken to sell hat particular property suggests that he did not intend
that particular property to affect the gift. The prospective purchasers may
have a claim against executors of the estate (see Re Pyle). One might ad that
this is applicable where the gift is specific. The doctrine of conversion has been
extended to cases where the testator has during his life time given another the
option to purchase his property. Once the option is exercised, even after the
testator’s death, a binding contract arises (see Re Carrington).
Once conversion is established, one of two things may result; one, the
diminution of a general or residuary devise; or, two the ademption of a specific
gift. The case of Lawes v Bennett is illustrative. There a testator bequeathed all
his personal to D and E and all his realty, including freehold land, to D. Prior to
making the will, he had offered the freehold land to a lessee for purchase
within a fixed period. Upon the testator’s death, the lessee exercised his
option and paid the agreed amount. The doctrine of conversion operated to
remove the land from the general gift to D and simultaneously added the
proceeds of the sale to the general bequest of all the testator’s personalty for
the benefit of D and E. The doctrine therefore operates to increase the amount
of money in relation to other assets of the estate.
Consequently, it has been said that conversion favours residuary and general
legatees at the expense of specific legatees and devisees. It must be
emphasized that for the doctrine of conversion to operate, the testator

69
himself , and not his personal representatives, must have fettered the property
with a duty to sell prior to his death. All things being equal, each legatee and
every devisee is safe provided the estate is sufficient. In case a property
bequeathed or devised is sold, the legatee is entitled to claim his money.
However, if the sale was necessitated by a need to pay the testator’s just
debts, they may not be able to claim all the proceeds as the gift may abate.
By conveying land to trustees upon trust or himself after he had made a will in
which he had already devised the land to the beneficiary, the testator retains
an equitable interest in the land. If , however, the conveyance was upon trust
for sale, the testator only retains his equitable interest so long as the land is
not sold. Upon sale by the trustees, the testator’s equitable interest shifts to
the money paid over to him. Consequently, though the trustees postpone the
sale for a long time, equity takes the view that the beneficiary has an
equitable interest in the money from the moment the trust was created. In the
result, a person to whom the land has been devised by a will receives nothing;
for right from the very moment of the creation of the trust for sale, equity
deems the testator’s interest to have been converted into a money interest
and adeemes the devise to the beneficiary .
FAILURE OF OBJECTS OF CONVERSION
If a testamentary document provides for land to be given to trustees upon
trust or sale for the benefit of issues of the testator, the doctrine of conversion
operates to treat het interest of the children as personal property. When these
children also make a will bequeathing their personal property the new
beneficiaries will get their interests under the trust for sale. A testator may
avoid the effects of the doctrine of conversion by indicating clearly in his will or
codicil that the devisee or legatee should take the property in whatever form it
is found at the testator’s death. In that case the operation of the foregoing
rules of equity can be evaded.
Also a beneficiary under a trust to convert may be able to avoid the operation
of the doctrine of conversion. This arises where for example an individual for
whom trustees are holding land upon trust or sale indicates unequivocally , by
conduct or words, that he desires to retain the land as land. IN that case the
court will not compel a sale and equity will not treat his interest in the land as

70
money. This is known as reconversion an usually applies where the beneficiary
who chooses to reconvert is absolutely entitled under het trust. If he is not
solely entitled then re-conversion is not usually available as it might prejudice
the rights of other beneficiaries (see Re-Sturt). Once re-conversion is
successful , the beneficiary’s interest in the property resumes its normal
characteristics. ON the death of the beneficiary such property will devolve
upon his own successors.
ELECTION
It is possible under the law of wills for a testator to persuade another to
transfer property to a third party. This is frequently done when the testator
leaves substantial property to the owner of another property on condition that
that owner transfers that property to a person of the testator’s choice. The
owner is then said to be put to his option as to whether to hold on to his own
property or transfer it to the third party in return for a substantial legacy from
the testator. As a method of effecting devolution of property this is not
entirely satisfactory, for the proposed beneficiary may well get nothing If the
owner of the other property opt to keep it.
Under the equitable doctrine of election , an individual who takes a benefit
under an instrument must adopt the whole of that instrument and therefore
renounce every right inconsistent with the provisions of the instrument.
The principle is well illustrated through the cases of Re Lord Chesam and
Codrington v. Codrington. Ordinarily, the principle of election will not prevent
a legatee of several separate gifts under the same will from rejecting those
that are onerous and accepting the beneficial. What is required is that the
beneficiary should take or reject the whole of het contents of a single gift (see
Re Joel) , involving a gift of a leasehold house together with its contents) and
RE Hotchkys. A will may expressly require a beneficiary to take all or none of a
number of separate gifts.
In Re Dicey, where a testator has only a limited interest in a gift which he
devises or bequeaths, it is presumed that the gift is only intended to pass only
that limited interest and the doctrine of election is unlikely to arise unless the
gift is specific. In Re Mengel’s Will Trusts the testator had been married and
domiciled in a country where community of property applied between
71
spouses. On his death the issue arose whether the widow should elect her own
community rites in the property and the benefits under the will.
SATISFACTION AND DOUBLE PORTIONS
Satisfaction occurs where a testator bequeaths a pecuniary legacy to a
creditor. Here equity assumes hat the legacy was given in satisfaction of the
debt (see Talbott v. Duke of Shrewsbury). The creditor cannot demand both
the debt and the legacy unless evidence is adduced to rebut the presumption
that the legacy was intended to pay the debt.
Generally speaking, a beneficiary is not disentitled from additional benefits
under a will on the mere ground that the testator had made a substantial gift
to him during his life time. This principle may not apply where the testator was
either a father or stood in loco parentis to the beneficiary .In such a situation,
equity tends to prevent the beneficiary from receiving a double portion at the
expense of others with equal moral claim on the testator, usually the testator’s
other children or persons who stood in loco parentis to the testator. Evidence
may be adduced to rebut this presumption however. (see Re Scott, Re Vaux.)
Effect of failure of a gift under a will
Provided a will is well drawn-up, the subject matter of a failed gift will either
fall into residue to form part of the gift to the residuary beneficiary or pass to
any substitutional beneficiary named by the testator . In the absence of a
residuary beneficiary, a substitutional gift or any other testamentary
arrangement, the property will pass on intestacy. If the failed gift was a life
interest, the interest in remainder will be accelerated.
CONSTRUCTION OF WILLS
The task of a court of construction is to determine what meanings attach to
particular words and phrases in a disputed will. If the words employed in a will
are clear and unambiguous, obviously there will be no need for construction.
Courts of interpretation are often faced with a dilemma as to whether they :
a. must adjudge the instrument of disposition void for uncertainty or
b. determine on the basis of a well defined principle, which of a number of
possible interpretations should be abandoned and which to follow.

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 It must be borne in mind that the courts are unwilling to apply a rule of
construction. In fact a rule of construction is applied as a last resort. Aside
from helping resolve the most contentious cases, knowledge of the detailed
rules of construction is useful in helping solicitors ‘draft testamentary
documents in a manner that avoids litigation. Rules of construction never
override a testator’s intention provided that intention is clear and
unambiguously expressed in the document. In Re Stone the court was faced
with a question regarding the construction of a will. Both parties placed
reliance on established rules of construction. But those rules were ignored
when the court found that the will made its own meaning sufficiently clear. In
the words of Lindley, L. J. “I do not enter into an examination of the cases
when I see an intention clearly expressed not eh will and find no rule of law
opposed to giving effect to it; I disregard previous cases”.
GENERAL PRINCPLES OF CONSTRUCTION
The Latin maxim Judicis est jus dicere, non dare (the judge declares existing law
and does not make new law) captures the underlying idea in the construction of
wills. In construing a testamentary document, the court is under a duty to
interpret the words the testator has actually embodied in the will; it does not
matter whether such interpretation leads to absurdity or produces an unfair
result. Testators are only under an obligation to effect dispositions in proper legal
form as prescribed by the Wills Act, 1971. A court of construction has no power
or authority to reshape and remould clear words in a will. Even where there is
evidence that the testator did not wish that a particular devise or bequest should
operate in the manner in which he had cast it the courts business is to interpret
the will and not to create a new document (Re Bailey (1951) Ch 407 Re Mills
Trusts (1967) 1 WLR 844 and Scale v. Rawlins (1982) A.O 342). Lord Wensleydale
formulated a most fundamental rule of construction thus in Grey v. Pearson
“In construing wills, and indeed statutes, and all written instruments, the
grammatical and ordinary sense of the words is to be adhered to, unless that
would lead to some absurdity, or some repugnancy or inconsistency in the rest of
the instrument, in which case the grammatical and ordinary sense of the words
may be modified , so as to avoid that absurdity and inconsistency but no further.”

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A similar observation was made by the West African Court of Appeal in Ali v Ali
(1939) 5 WACA 95.
The cases of Impraim v Baffoe (1980) 1 GLR 520 and in Re Amarteio (1982-83) GLR
1137 offer further elucidation of this point.
In construing a codicil the general principle is to interfere as little as possible with
the actual words in the original will. If a particular disposition in a codicil purports
to revoke a gift under the will the disposition must be clear and unambiguous; for
in cases of doubt the person claiming under the will succeeds. This follows the
principle laid down by tindal C. J . in Doe d Hearle v. Hicks :
“If such a devise in the will is clear, it is incumbent on who contend it is not to
take effect by reason of a revocation in the codicil to show that the intention to
revoke is equally clear and free from doubt as the original intention to devise; for
if there is only reasonable doubt whether a clause of revocation was intended to
include the particular devise, then such devise ought undoubtedly to stand.”
In reading the will as a whole and in investigating the circumstances and habits of
the testator the court may modify the natural meaning of words (see Re Rowland
). Also, if it is obvious that the testator used a particular phrase or word in a
peculiar sense of his own, the court may interpret that word in a peculiar sense of
his own, the court may interpret that word in that secondary or special sense
provided that the phrase or word is capable of bearing that meaning.
In Gilmour v. Macphillamy thee testator had bequeathed income to nine
children in equal shares for their lives with each child’s share passing to his own
children, if any, at his death. At the time o the testator’s death, five of the
children had died with issue. Two subsequently died without issue. The other two
survived the testator. The court held that the surviving children took the shares of
their two siblings who had died without issue. It did not matter that this
interpretation unfairly excluded the descendants of the five children who had
died earlier; for in the view of the court nothing in the context of the will gave
secondary meaning to the word “survivors.”
The court has power to interpret a word or phrase in a secondary meaning once it
is established that the surrounding circumstances of the testator show that he
used the word or phrase in that particular meaning .

74
In Re Smalley, the testator left property to “my wife EAS”. the named woman
considered herself to be the wife and was in fact generally so regarded although
the man had committed bigamy in marrying her. However, given these
surrounding circumstances, the court construed the word wife to mean the
testator’s reported wife as the circumstances indicated that he had used the
word “wife” in this secondary sense.
Evidence of a surrounding secondary meaning is applied when the court of
construction employs the “dictionary principle”. This arises when a testamentary
document specifies that certain words employed in it are used in a special sense.
In such a case, the testator would have effectively supplied the dictionary in his
will to be used in the clarification of words and phrases. The court will
accordingly use the words and phrase in that sense. the dictionary principle may
also be employed indirectly if on reading the will as aw hole it becomes obvious
that words and phrases are used in a special meaning. This is the case where the
words and phrase in question are used in other parts of eth will in a peculiar but
unmistakable sense. In Re Helliwell a testator who stated in his will that his
illegitimate son was to share equally with his other nephews was held to have
used “other nephews” to include illegitimate nephews. Also in Re Davidson, the
court held a gift to “my grandchildren” to include the children of the stepson of
the testatrix as the will had escribed the stepson as “my son” and one of his
children has also been described as a “my grand daughter”.
The court will normally attribute a technical meaning to a word or phrase if it has
acquired that meaning in the legal or scientific terminology. (ARbenser v. Hesse
(1981) GLR 411. However if the will provides sufficient other evidence, technical
words may be construed in the light of that evidence. But this remains a mere
possibility as courts are reluctant to construe such words in a non-technical sense
unless the will, read as a whole , compels a conclusion that the testator had
employed the technical word in a non-technical sense. Perhaps the word “heir”
or “heirs” has required the most recognizable technical meaning in the law of
wills largely on account of the tendency of the court to favuor the claims of their
heir to parental or ancestral heritage as against other claims. This is particularly
established in the English law of wills, in Re Smith : a testatrix devised land to
beneficiaries with “remainder to my own right heir other than my nephew Robert
and his issue.” The testatrix left no issue and the nephew Robert had predeceased

75
her but was survived by a son who was her heir at law but the testator would
have been her heir if the nephew and the son had never existed. It held that the
gift was void by giving the word “heirs” its technical meaning , and ending on that
basis that the gift amounted to a dives” to my heir (other than my heir)” and was
therefore meaningless.
EXTRINSIC EVIDENCE
As a rule , extrinsic evidence arising outside the four pages of the will is
inadmissible for the purpose of construing a testamentary document. Not even
witnesses who had attested the will nor the solicitor who drafted it (but see
Yankah v. Administrator-General (1971) 2 GLR 1866) are permitted to give
evidence as to the intention of the testator.
Thus, parole evidence is inadmissible except for the purpose of proving a face
which renders intelligible that which would otherwise remain unintelligible.
SURROUNING CIRCUMSTANCES OR THE ARMCHAIR RULE
Evidence regarding surrounding circumstances at the date of execution of the will
is admissible to elucidate the meaning of particular words. The armchair principle
as laid down in Allgood v. Blake is as follows :
“In construing a will the court is entitled to put itself in the position of the testator
and to consider all material facts and circumstances known to the testator with
reference to which he is taken to have used words in the will, and then to declare
what is the intention evidenced by the words used with reference to those facts
and circumstances which were (or ought to have been) in the mind of the testator
when he used those words.”
Further, in Boyes v. Cook, James LJ said
“ You may place yourself so to speak, in [the testator’s] armchair and consider the
circumstances by which he was surrounded, when he made his will to assit you in
arriving at his intention”
The armchair rule is applied in two stages:
1. the will is constructed without reference to surrounding circumstances; and

76
 2. the apparent effect of the will is applied to: the surrounding circumstances
to ensure that the construction of the will accords with circumstances
prevailing at the time the will was made.
The armchair principle is usually empl0yed in regard to the identity of gifts in the
will an less frequently for the identification of beneficiaries. It is never employed
to attach an altogether unusual meaning to a word.
as was noted in Higgins v. Dawson “ IN the class of cases in which you cannot tell
exactly what is given or to whom it is given because of obscure or doubtful
expressions of the testator’s will in regard to the particular conditions of his
property, you must have –recourse to extrinsic evidence to ascertain its
meaning.”
The armchair principle may quickly be re-stated as follows : In cases where the
extent of the subject matter of a gift or its identity is in question, extrinsic
evidence comprising surrounding circumstances , habit of speech , treatment but
not declarations of intention may be given in proof of the testator’s intention. In
Mckeown v. Ardagh, a legacy was left to the “Patagonian Chilean and Peruvian
Missionary Society.” Evidence showed that no such society existed but there was
a “South American Society” with missions in those countries and that the testator
subscribed to that society. The legacy was given to that society.
The rule may also be employed to resolve competition between several subjects.
This was the case in Charter v. Charter where the testator appointed his “son
Forster Charter” as executor although that son had died several years previously.
The testator had two other living sons: Charles Charter and William: Forster
Charter.
The Court of Appeal decided in favour of Charles. This was upheld by the House of
Lords which made a pertinent observation regarding admissibility of evidence:
“This is not a case in which any parole evidence of statements of the testator, as
to whom he intended to benefit or supposed he had benefited by his will, can be
received…the only case in which evidence of this kind can be received is where
the description of the legatee or of the thing bequeathed is equally applicable in
all its parts to two persons or to two things.” Evidence had been admitted to show
that Charles lived at home and consequently that the statement “so long as they
reside together in the same house” fitted him more than William.

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EVIDENCE OF THE TESTATOR’S ACTUAL INTENTION AND EQUIVOCATION
As a general rule, such evidence is inadmissible for the purpose of construing a
will. As has already been said, the actual words of a will construed in the light of
the habits and circumstances of the testator at the time the will was made are the
only guides to testamentary intentions. Reliance on these may not always arrive
at the testator’s true intention, particularly where equivocation arises.
Equivocation occurs where when the words of a will, construed in the light of
surrounding circumstances, applies. In such circumstances evidence of the
testator’s actual intention may enable the court to ascertain which individual or
thing was meant when the testator used the equivocal words; otherwise the gift
fails for uncertainty.
There are three types of equivocation. The same name or description may fit two
persons exactly. However cases of equivocation as between things as opposed to
persons are uncommon. In Richardson v. Watson¸ a piece of enclosed land was
devise to a beneficiary in a descriptive a manner which was applicable which was
applicable to two of the testator’s properties. It was held that extrinsic evidence
as to the testator’s intention was admissible to determine which of the two
properties was intended . When that evidence was adduced, it showed that the
testator had wanted the beneficiary to have both properties. This left unresolved
the question of which of the two properties was intended. Therefore the extrinsic
evidence was held to be inadmissible and the gift failed for uncertainty.
A second type of equivocation arises where the same description or name fits one
accurately and the other in a popular but less accurate sense. This type of
equivocation occurred in Bennett v. Marshal where the testator had devised
property to : “William Marshal my second cousin” but had no second cousin of
that name although he did have first cousins one of whom was called William
Marshal and the other William J.R.B. Marshal. It was held that there was
equivocation and declarations of intention were admissible to remove doubts as
to which cousin should take.
A further form of equivocation occurs where a description fits an individual in a
transposed sense and also fits another person accurately. This occurred in
Henderson v Henderson . The testator left property to “my grandson Robert
William Henderson” He had wo grandsons called Robert William Henderson and

78
William Robert Henderson. Although this case is of doubtful authority the court
held that there was no equivocation and extrinsic evidence of intention was
admissible.
A final type of equivocation occurs where the same description or name fits two
objects equally but is subject to inaccuracy common to both. If the inaccuracy is
applicable to no other object or thing, or is a mere blank, the court may reject it
as demonstrably false. In Re Hubbuck the testatrix appointed “MY
granddaughter” as her executrix but she had three granddaughters at the date o
making the will. IT was held tht since only a partial blank and not a complete
blank had occurred, extrinsic evidence of the testator’s intention was admissible
to ascertain which granddaughter was intended. Evidence as the testator’s wishes
is not inadmissible simply because other parts of the will suggest that two
individuals answer the same description: the unusual case of Doe d Gord v. Needs
is of relevance. The testator had gifted a house to “Geoerge Gord, the son of
George Gord”; he then devised another house to George Gord , the son of John
Gord” and a further house to “George Gord the son of Gord” The court held that
evidence regarding the testator’s intention was admissible to show that the final
devise has been maeant for Goerge God the son of Geroge Go. Once evidence of
intention is admissible, statements made by the testator both prior and
subsequent to the will, as well as statements made contemporaneously with the
will are admissible.
Equivocation does not arise simply because the description applies equally to two
persons and things when, upon a true and proper construction of the
testamentary document, it is clearly shown which of the two things or persons
the testator intended. Insignificant and slight indications of the testator’s
intention are not enough to exclude a description form being regarded as
equivocal. Thus in Doe d Morgan v Morgan a gift to “Morgan Morgan” then
another to “Morgan Morgan of MOttvey” in a situation where there were two
Morgan MOrgans, one of them from MOttvey was not regarded as sufficient to
show that the first Morgan Morgan was not the MORgan Morgan from MOttvey.
Although a will may in itself show evidenced of ambiguity, yet when an attempt is
made ot apply it to existing circumstances, executors may find hat two objects or
two persons fit the same description. This is latent ambiguity and is quite
different from patent ambiguity which is discoverable on the face of the will

79
itself. As has already been indicated , direct evidence of the testator’s intention is
available to resolve either form of equivocation.
SUBSIDIARY PRINCIPLES OF CONSTRUCTION
Falsa demonstratio rule: The falsa demosntratio rule is not confined to only wills.
It applies to all written instruments including wills. The full maxim is falsa
demonstration non nocet cum de corpore constat , and it means that ‘a false
description does not vitiate a document or instrument, provided the thing has
once been described with certainty.’ It has two facets in its application to wils.
First, it means that a false description does not affect a gift if it is clear what is the
subject described. In other words , if the description of the person or property
consists of more than one part, of which one part is true but the other is false , if
the true part sufficiently describes the person or property with certainty, the false
part will be rejected and it cannot vitiate the gift. In Yankah v Admnistrator-
General [1971] 2 GLR 186 the testator misdescribed his ‘Nyamitiase Lodge’ as
‘Yamitiase House,’ and misnamed his son Ernest Hayford top alias Ebo as Eboe
Holdbrook Topp Yankah. The Ghana Corut of Appeal upheld the probate granted
of the will. Delivering the judgment of the Court of Appeal, Apaloo, JSC as he thn
was said : “The only difference between the words ‘Nyamitiase’ and ‘Yamitiase’ is
that in the latter, the ‘N’ is omitted. This may well be due to [the solicitor’s]
difficulty in deciphering the testator’s handwriting. But the house in question is
sufficiently designate and there can be no doubt as to what house was intended
to be devised. No point of substance can be made of the fact that the premises
was called ‘House’ instead of ‘Lodge’. As to the mixing up of the names , this may
well be due to the testator’s defective memory when his end was near. But there
seems to be no doubt whom the testator meant. Whatever the errors, the rule of
law on which a Court of Probate acts in these matters is that mere misdescription
does not invalidate a gift or put in the language of the classical Roman lawyer:
false demonstration non nocet.”
Similarly in Re Price, Trumper v Price, a false description was ignored and the gift
ws held to take effect. In that case, the testatrix held 400 National War Bonds
which had been converted into other Government securities before the date of
the will. She held no War Loan. In her will, however, the testatrix made a gift of
‘My 400 five per cent. War Loan, 1929/1947.’ It was held that the misdescription

80
of National War Bonds as ‘War Loan’ was not fatal as her words ‘Five per cent…
1929/1947’ were rejected as a misdescription or a false demonstration which did
not vitiate the gift. The result was that ‘Loan’ was also given a secondary meaning
to cover the National War Bonds, in order to give effect to the wishes of the
testatrix. It was confessed by Eve, J, that this was a case of first impression which
was not adequately covered by authority, but he stated that, if it was necessary
that the falsa demonstrate rule should be further extended in order to resolve the
issue the way he did.
The second facet of the falsa demonstration rule is that additional words are not
rejected as importing a false description if they are capable of being construed as
words of restriction. In Wrightson v Calvert, the testator made a gift to his
grandchildren living in a locality. Although the testator had three grandchildren,
only two lived in the stated locality were entitled to the gift. The exercise here
was that, instead of rejecting the reference to residence as false, it was held to be
restrictive, so as to exclude those who were not living in the locality.
Ejusdem generis rule: As has already ben noticed, words and phrases in a will are
given their ordinary meaning except where it is obvious that the testator had
employed them in a secondary or other sense. Consequently a word of generic
nature is construed in its wide generic sense unless the will suggests a more
limited meaning. This occurs mostly in cases where a generic word is semployed
in a sense that links it to other expresssions indicating a narrower class of objects.
In such circumstnaces the court may opt to restrict the broad meaning of the
word to include only objects of a category similar to those referred to in the
accompanying expressions. Re Miller , Daniel v Daniel illustrates this point. The
testator gave wine and books in his home to A. Plates in the same place were
given to B and “all the rest of the furniture and effects at my residenc” were
bequeathed to C. After the death of the testator it was discovered that he also
kept share certificates and bank notes in his residence in addition to articles
specified in his will. Oridndarily, the word “effects” is sufficiently borad to include
all personal property but the court held that “effects” must be construed
“ejusdem generis” with wine, books, plates and furniture; namely, the words
which preceded it. In the view of the court the testator had intended C to take
only effects of a character similar to the items already described. Therefore the
bank notes and shares passed to the residuary legatee. In Hall v Hall the words

81
“goods and chattels” were construed to mean the whole of the testator’s
personal estate. In RE Collins’ Will Trusts the testator had bequeathed to his
sister “such articles and personal effects as she shall select from among those at
my lodgings.” The effects’ included a collection of stamps and coins as well as a
motor car which was kept at the logings.

Inconsistent Clauses:
Courts Prefer a beneficial Construction
Description of Persons:
Uncertainty:
Description of Property:
General devises and bequests:
Gifts of lands
Gifts of “Real Estate”:
Gifts of “Money”
Gift of “Fruit”
Gift of “Tree”
Gift by implication
Accelleration
Concurrent gifts to several persons
STATUTORY RULES OF CONSTRUCTION
The Wills Act, 1971 (Act 360) ahs provided a number of statutory rules of
construction. Section 7 broadly provides “

82
7(1) A will shall take effect as if it had been executed immediately before the
death of the testator, unless a contrary intention appears from the will
7(2) A disposition of immovable property without any words of limitation shall
pass the whole of the estate or interest therein which the testator has power to
dispose of by will
7(3) A general disposition of the land of a testator or of his land at any place, or in
occupation of any person or otherwise described in a general maner, shall include
lands of whatsoever estte or tenure, unless a contrary intention appears from the
will.
7(4) A general disposition of the movable or immovable property of a testator
shall include any property to which he may have power to appoint in any manner
he may think fit.
7(5) A general or residuary disposition shall operate to confer a power to exercise
a power of appointment, unless a contrary intention appears from the will.
Section 7 thus shuts the door on litigation by providing forms of finality and
legality to a variety of matters testators may fail to spell out in their wills. For
instance, the disposition of a property is construed to pass the whole of the
testator’s interest in that property to avoid vexatious claims to the contrary,
leading to litigation.
FAMILY PROVISION
The Wills Act, 1971 (Act 360) incorporated notions of family provision in Section
13 as follows :
“ 13(1) If , upon application being made, not later than three years from the date
upon which probate of the will is granted, the High Court is of the opinion that a
testator has not made reasonable provision whether during his lifetime or by his
will, for the maintenance during his lifetime or by his will, for the maintenance of
any father, mother , spouse or child under 18 years of age of the testator, and
that hardship will thereby be caused, the High Court may, taking account of all
relevant circumstances, notwithstanding the provisions of the will, make
reasonable provision for the needs of such father, mother, spouse or child out of
the estate of the deceased.”

83
Several points may be noted from the above. First, benefits from family provision
are premised on a needs-based regime. It would appear to follow that in the
absence of proven need leading to hardship , a parent , spouse or child of the
deceased may well fail to obtain family provision. Second, claims under Section 13
are grounded on closeness to the deceased based on consanguinity or blood; and
third, proof of gifts inter vivos by the deceased may influence the court’s decision
to make family provision.

FAMILY PROVISION UNDER OTHER LEGISLATION

The Children’s Act, 1998
The Children’s Act, 1998 (Act 560) has further entrenched family provision in our
laws by providing in Section 7 : “No person shall deprive a child of reasonable
provision out of the estate of a parent whether or not born out of wedlock.”
Unlike Section 13 of the Wills Act, 1971 (Act 360), Section 7 of the Children’s Act is
child-focused, designed to protect children whether or not born within wedlock.
Constitutional provision
Family provision is enshrined in the Constitution. Article 22(1) provides : “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.” The contents of
Article 22 amounts to spousal provision designed to reinforce the claims of
marital couples to each other’s estate and to minimize hardships of surviving
spouses.
Reasonable Provision
Applications under the above statutes undergo a two –staged process. Firstly, the
court considers whether dispositions made under the will of a deceased or
resulting from the operation of the rules of intestacy, or , a combination of both
enables reasonable provision to be made for an applicant dependent. If the
enquiry is positive in the sense that it is found that the deceased had not made
reasonable provision, the second stage is triggered; namely, the court may order

84
that reasonable provision be made out the net estate of the deceased for the
benefit of the applicant dependent.
Greater difficulty arises as to whether the courts should adopt an objective or
subjective approach in determining whether, given the circumstances of the
deceased and facts known to him, he had made reasonable provision for
dependents. Applying a subjective standard, it would appear that only
circumstances known to the deceased or reasonably foreseeable by him can be
taken into account; and that circumstances and events occurring after his death
should be left entirely out of account unless they were reasonably foreseeable by
him. However, upon the application of an objective standard, account may be
taken of circumstances that became apparent either at the deceased’s death or
afterwards. In regard to the two approaches , two English cases are particularly
pertinent. In Re Styler , Morton J said :
“I do not think that a judge should interfere with a testator’s dispositions merely
because he thinks that he would have been inclined, if he had been in the position
of the testator to make provision for some particular person. I think that the court
has to find that it was unreasonable on the part of the testator to make no
provision the person in question or that it was unreasonable not to make larger
provision.”
On the other hand , the objective approach was expressed by Megarry J. in Re
Goodwin : “The question is simply whether the will or the disposition has made
reasonable provision, and not whether it was unreasonable on the part of the
deceased to have made no provision or no larger provision for the dependent. A
testator may have acted entirely reasonably; and he may have taken skilled advice
on the drafting of his will, intending to make a fully reasonable provision; and yet
through some blunder of the draftsman (perhaps as to the incidence of estate
duty) or by some change of circumstance unknown to the testator in his lifetime,
the provision in fact made, may have been wholly unreasonable. Conversely; the
testator may have acted wholly unreasonably in deciding what provisions to insert
in the will, but by some happy accident, such as the lapse of a share of residue
which then passed to the widow-as on intestacy, the provision in fact made may
be entirely reasonable. In my judgment the question is not subjective but

85
objective. It is not whether the testator stands convicted of unreasonableness , but
whether the provision in fact made is reasonable.”
The weight of English authority, including the opinion of Denning. M.R. in MIlward
v Shenton (1972) 1 WLR 711) favours the objective approach; form that
standpoint the court takes account of circumstances of which the deceased was
not aware , could not reasonably have foreseen or about which he was simply
mistaken.
To take advantage of family provision legislation, a Ghanaian beneficiary must act
within reasonable time as Section 104 of the Administration of Estates Act, 1961
(as amended) provides that a personal representative “shall distribute the estate
of the deceased person within one year after he has been granted probate or
letters of administration”.
OTHER RELEVANT CASES
IN RE OKINE (DECD); DODOO AND ANOTHER VRS. OKINE AND OTHERS [2003-
2004] 1 GLR 630
FACTS : The deceased made a hand-written will of his self acquired properties. He
appointed the plaintiffs as his executors. After his death, the plaintiffs applied for
and obtained probate in respect of the properties. This was caveated by the
defendants, some members of family of the deceased on several grounds inter
alia that the will did not conform with the formalities of the Wills Act , specifically
section 2. They contended that the will was not in the actual hand writing of the
deceased and that his signature was forged. They further contended that the will
was not singed by the deceased in the presence of the witnesses , and moreover ,
the witnesses signed in each other’s absence. The probate was thus revoked.
Both the High Court and Court of Appeal all held the will to be invalid by virtue of
the fact that it did not conform to the requirements of the wills Act. On Appeal to
the Supreme Court,
HELD :
 Act 360 did not require that a handwritten will be written in the hand of the
testator. Section 2(1) of Act 360 only required that a will be “in writing.”
Thus, a will could be written for a testator or could be typewritten by the
testator or some other person for the testator. The only requirement was
86
 that the will, by whomever it was written or typed, had to be duly signed by
the testator or some other person at his direction. Accordingly, a
handwritten will could not be denied probate for the only reason that it
was not in the handwriting of the testator himself. Accordingly, in the
instant case, it was totally irrelevant whether the deceased testator wrote
the will himself or it was written for him by another person, provided there
had been a proper execution animo testandi.
 The law did not require for the proper or due execution of a will that the
attesting witnesses must necessary see the testator sign his name or that
the attesting witnesses had to sign in the presence of each other. Section
2(3) of Act 360 required that the testator’s signature had to be made or
acknowledged by him in the presence of at least two witnesses present at
the same time. Therefore, even if the witnesses did not see the testator
sign his name, it was proper and sufficient if his signature was
acknowledged by him. The acknowledgment of the signature did not need
to be in so many words. It might be by a mere gesture. Furthermore,
section 2(5) of Act 30 provided that each of the attesting witnesses had to
sign in the presence of the testator; but they did not need to sign in the
presence of each other. Therefore, even if the witnesses did not see the
testator sign his name, it was proper and sufficient if his signature was
acknowledged by him. The acknowledgment of the signature did not need
to be in so many words. It might be by a mere gesture. Furthermore,
section 2 (5) of Act 360 provided that each of the attesting witnesses had to
sign in the presence of the testator; but they did not need to sign in the
presence of each other. Therefore, after the testator had signed or
acknowledged his signature in the presence of both witnesses, one of them
might be away while the other sign in the presence of the testator “ and in
the presence of each other”, that was not a legal requirement.
INTESTATE SUCCESSION
The Concept of Intestacy1 :
“Intestacy may be defined as the condition of dying without leaving a valid will or
directions as to the manner f disposition of one’s property. In legal usage it
1
N.A. Josiah –Aryeh “The Right to walk in another man’s shoes: The intestate succession Act in context” UGLJ Vol
XXVII 2014 pg. 202

87
applies specifically to dying without leaving testable property disposed of by will.
Two forms of intestacy are recognized : total intestacy and partial intestacy. A
deceased clearly dies totally intestate if he left no valid will to govern the
devolution of his estate. In that case, the law falls on the rules of intestacy to
determine the devolution of his estate. Individuals who may assume that they
have made a perfect will may well die partly testate and partly intestate.
Succession to their property falls into a penumbral area of the law called partial
intestacy. In such an event the terms of the will apply to those properties to
which he died testate and the rules of intestacy will regulate the distribution to
properties in respect of which he died intestate. Both processes are , in turn ,
subject to any necessary statutory interventions operating for the time being.
The state of partial intestacy is subject to statutory rules on family provision and
such like legislative interventions. Total intestacy also occurs in the following
instances : (1) where the deceased was under 18 years of age and incapable of
making a will; (2) the deceased, being adult, deliberately chose not to make a will;
(3) the deceased lacked the requisite testamentary capacity to amek a will; and
(4) the deceased, having made a will revoked that will without making another.
Section 2(1) of PNDC L 111 provides that “ a person shall be deemed to have died
intestate under this Law if at the tiem of his death he had not made aw ill
disposing of his estate. Under section 2(2) “ any person who dies leaving a will
disposing of part of his estate shall be deemed to have died intestate under this
law in respect of that part of his estate which is not dispoed of in the will and
accordingly the provisions of this law shall apply to such part of his estate.”
Intestate succession is presently governed by the Intestate Succession Act, 1982.
In 1985, PNDCL 111 was enacted as amended in 1991 by the Intestate Succession
Amendment Law, 1991-Law 264.
The practice of intestate succession is governed by customary law. Under Act
111 , a certain proportion of the estate in certain circumstances is governed by
customary law. Law 111 was enacted because it was felt that the customary law
rules for the distribution of intestate estates were unfair and unjust in certain
situations especially to spouses, that is widows and widowers. In the case of
matrilineal societies to chidren.

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The law in relation to intestates estates before law 111 was not uniform and so
the type of marriage of the deceased could affect the rules of intestate
succession. Particularly if the deceased was married under the marriage
ordinance or the marriage of Mohammedan ordinance, different rules applied. All
of these were considered problematic and that is why law 111 was enacted.

CUSTOMARY INTESTACY
TYPES OF FAMILY SYSTEMS
The term ‘family’ is generally used within the context of the customary law to
embrace a large unit of persons who are related by consanguinity. There are two
main types –matrilineal and patrilineal
A family is said to be patrilineal if membership of the family is traced through the
male line and matrilineal when membership is traced through the female line.
These types have radically different rules applying to succession.
The following ethnic groups are matrilineal :
 The Akan (all of them with one or two exceptions)
 Lobi
 Tamp Lense
 Vangala/baga
 Ga Manshi
The following ethnic groups are patrilineal
 Ewe
 Ga-Ga Mashi
 Dagme
 Krobo
 Dagomba
 Guan
 Kyerepon
 Buem
 Akan elements in northern volta region

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 All ethnic groups in the northern, upper east and upper west regions apart
from Lobi, tamp lense and vagala /baga
There is case law decisions holding that the Ga mashi were matrilineal. Some
of these cases were tried by the whites who used Akan principles. However,
Prof Kotey believes that they are patrilineal. There are some Akan elements in
the Ga Mashi and it can be seen in names like Amponsah…
Mixed Marriages
There are also mixed marriages which holds different issues. This is a situation
where man from a matrilineal community marries a woman from the
patrilineal community. Technically the children from such families are without
family. The customary law solution to this problem is that they are accepted
and assimilated and associated with the family type they relate most with
though they do not have full rights. The customary law which governs the
devolution of their estate would be the one to which they were most attached.
The next type is where the woman is from a matrilineal community and the
father is from a patrilineal community. Children from these types of marriages
can enjoy form both sides. If during their lifetime they were associated with a
particular family type, then it is that particular rules of succession that would
govern the devolution. Where there is no clear evidence of choice from the
way the person lived, then the devolution of his or her property would be
governed by both.
MATRILINEAL COMMUNITY-PRE LAW 111
The deceased’s property would devolve on his immediate matrilineal family
which comprises of his mother, uterine brothers and sisters and issues of such
sisters.
A spouse is not a member of the deceased’s family. Children of a deceased
male are not members of the family.

MAINTENANCE OF RESIDENCE OF CHILDREN

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The father is under an obligation to support his children and house them during
his lifetime . Upon his death, this duty is assumed by a customary successor. The
courts have over the years tried to improve the situation of children and surviving
widows in matrilineal communities. This has been done by emphasizing this
obligation of the father to house and support his wife and children.This obligation
is placed on the customary successor of the deceased –Manu v Kumah. The
Supreme Court held that a successor under customary law was under an
enforceable legal obligation to maintain and educate the children of the deceased
even though they could nto lay claim to any specific portion of the intestate
estate.
The right of residence in a dwelling house built by his father on family land was
however said to be subject to the condition of good conduct, a qualification which
in practice tends to undermine the full enjoyment of the right by surviving widows
and children. This was observed by Wiredu J in Amissah –Abadoo v Abadoo.
THE RIGHTS OF WIDOWS AND WIDOWERS
The widow or widower does not have any share of the property of a deceased
husband or wife. A spouse is not a member of a deceased matrilineal family. The
rules of customary law however imposed an obligation on the customary family
to provide for the widow or widows of the deceased. A surviving widow was also
accorded the right to reside in the house built by her deceased husband. In Re
Antubam, Abrebrese v Kaah, Amissah-Abadoo v Abadoo. It must be noted ,
however that the surviving widow’s right to maintenance differed from that of
the children in that it derived exclusively from the existence of the marriage.
PATRILINEAL COMMUNITY
The right to succeed property in this community is derived form membership of
the family through ones father. When the man dies intestate, it is his children
who inherit. Hausa v Hausa , Yawoga v Yawoga, Husunukpe v Dzegblor,
Sedorme v Dodor, Agboe v. Mang. A surviving spouse at customary law has no
specific share of the deceased’s property. Though a widow has a right of
residence in the house built by her husband.
Children as Successors.

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Among the patrilineal communities, it is the children of the intestate estate who
succeeds as of right. Their respective shares are subject to the rules of that
patrilineal community. See hausa v Haruna,
The Role of the Customary Successor
At customary law, on the death intestate of a person, a customary successor is
appointed. This person is generally from the immediate family of the deceased.
By immediate family, in the case of matrilineal communities, the mother of the
deceased if alive, the uterine siblings of the deceased and the children of his
sisters. For patrilineal communities, the brothers of the deceased or the children
of the deceased and if there are males among the children , then it is more likely
that it is the male who will be appointed customary successor.
The customary successor steps into the shoes of the decease. That is why Kludze
sometimes refers him as the ‘positional successor’. His role is to administer the
estate in accordance with customary law for the benefit of those entitled to enjoy
the estate.
It should be noted that, under matrilineal communities, the customary successor
is to administer, manage and control the estate of the deceased for the benefit of
the immediate family of which he is a member. The customary successor
therefore does not have an absolute interest to the entirety of the estate to the
exclusion of other members of the immediate family and definitely cannot
alienate the estate or any part thereof without the consent of the immediate
family.
In Manu v. Kuma, the Supreme Court held that a customary successor under
customary law was under an enforceable legal obligation to maintain and educate
the children of the deceased, even though no specific portion of the intestate
estate could be claimed by the children or any of them. The Supreme Court stated
in that case : “There is no doubt that by customary law a successor stands in the
shoes of his predecessor and assumes liability for his legal responsibilities within at
least the means of the estate inherited by him…We consider that the responsibility
of a successor to maintain and train the child of his predecessor is a legal one and
the right enduring therefrom to the child is different in its nature from a right to
succeed to a share in the estate of his deceased father…We say therefore that a
successor under customary law is under an enforceable obligation not only to

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maintain but also to educate the children of his predecessor to the extent of the
property of the deceased which has come to his possession and his dealings
therefrom.” In the case of In Re Kofi Antubam (deceased) ; Quaicoe v Fosu &
Anor , it was further held that under Akam customary law the widows and
children of an intestate are entitled to be maintained by the head of family or
successor, by the payment of adequate allowance to the widows during their
widowhood and also the children until they are capable of maintaining
themselves, the court adding that such payments may be periodical or amount to
capitalized annuities.
Patrilineal communities usually appoint a brother as the successor or if the
deceased is a woman , a sister of the deceased or the eldest son or eldest
daughter if the deceased has adult children and their role is also to manage the
estate. Hence in both matrilineal and patrilineal communities the customary
successor plays a critical role in ensuring fairness and equity in the distribution of
the estate and also to safeguard the rights of those entitled to benefit from the
estate.
PROBLEMS
1. Position of Spouses : Under both the matrilineal and patrilineal system of
inheritance under customary law, a spouse is not a member of the family and is
not entitled to inherit. Widows were given some rights of maintenance and
support if the estate could afford it.
2. Situation of Children in Matrilineal Communities : In matrilineal communities
because membership of the family is traced through the woman, the children of
the deceased male are not members of his family and therefore do not inherit.
Again children were given rights of living in , and maintenance support from a
deceased father’s estate.
Even under patrilineal systems where children inherit, generally, there was
discrimination against female children in favour of male children particularly
where the deceased was a man.
Even before Law 111, two attempts were made to prove the rules of intestate
succession in certain situations. Section 48 of the Marriage Ordinance and
section 10 of Marriage of Mohammedan Ordinance (All have been repealed).

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The Marriage Ordinance provided that where the deceased is married under the
Ordinance, then upon his or her death, his intestate estate will be distributed
according to the laws of England ( The English Rules of Intestate Succession,
1948)as it existed at the time of the coming into effect of the marriage ordinance.
Under the English rules, it is the surviving spouse and children who inherit.
Section 10 of the Mohammedans Ordinance provided that where a person is
married under Islamic Law and the marriage is registered under the Ordinance,
then upon the death intestate of such a person, his estate will not devolve
according to customary law but will devolve according to Islamic law.
The section requirement under section 10-that the marriage must be registered
under the ordiancne meant that although the marriage was under Islamic law,
because the marriage had not been registered, section 10 wasn’t applicable.
All these remained not satisfactory leading to the promulgation of Law 111.
INTESTATE SUCCESSION LAW, 1985 (PNDCL 111)
The rational is summarized in the memorandum to the law “This Act is aimed at
removing the anomalies in the present law relating to intestate succession and to
provide a uniform intestate succession law that will be applicable throughout the
country irrespective of the class of the intestate and the type of marriage
contracted by him or her.
The present law on intestate succession appears to be overtaken by changes in
the Ghanaian family system. The nuclear family (i.e. husband, wife and children) is
gaining an importance which is not reflected in the current laws of succession.
There is a tension between this smaller group and the traditional family unit as to
the appropriate line of devolution of property upon the death intestate of a
member of both units. At customary law, there is very little protection for a
surviving spouse. Neither spouse has a right to the property of the other. Children
in a matrilineal system have no more than a right to maintenance by their father’s
customary successor and a right to reside in their father’s house subject to good
behavior.
The growing importance of the nuclear family brings with its own logic moral
justice. Simply put, this argues that a surviving spouse be compensated for his or
her services to the deceased spouse; that a spouse is more likely to look after the
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children on the death of the other partner than anybody else; and that
expectation of the spouses are probably best satisfied by giving the property of
one to the other on the former’s death. …”
Applicability
It applies to any person who dies intestate, on or after the commencement of Law
111. Section 1(1). In re Sackey , Ansaba v Mbeah [1992] 1 GLR 214, section 21 of
Law 111.
Section 1 :
(1) On the commencement of this Law, the devolution of the estate of any
person who dies intestate on or after such commencement shall be
determined in accordance with the provisions of this Law subject to
section(2) of this section and the rules of private international law.
(2) This law shall not apply to any stool, skin or family property
Section 2-Intestacy and Partial Intestacy.
Section 2(1) provides that a person dies intestate under the Act if at the time of
death that person has not made a will disposing off the estate of that person.
Section 18 , the interpretation section provides that ‘will’ includes not only a will
under the Wills Act but samansew and any other form of will recognized at
customary law.
Section 2(2) deals with partial intestacy. Where the will does not dispose off the
entirety of the estate, the portion not disposed off, is deemed to have been left
intestate and will be apportioned in accordance with law 111.
Section 21: Transitional Provisions: (1) “ Notwithstanding the provisions of section
1 of this Law or any other enactment the provisions of this Law shall be applicable
in the settlement of any claim or adjudication pending before the Court or a Chief
or Head of Family under customary law at the commencement of this Law in
respect of the administration or distribution of the estate of an intestate who
died before such commencement, and for the purposes of this section the
provisions of the Customary Marriage and Divorce (Registration ) Law, 1985
(PNDCL 112) and the Administration of Estates Act, 1961 (Act 63) as amended by

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the Administration of Estates (Amendment) Law, 1985 (PNDCL 113) shall be
deemed to be applicable to such claim or adjudication.”
ADADE V ADADE & ANOTHER : The deceased died in April 1984. The defendants,
a brother and a sister of the deceased, applied for letters of administration in
respect of the estate. The plaintiff-widow caveated, claiming that one of the
properties listed as belonging to the deceased, a house at Nhyiaso, Kumasi had
been gifted to her and her children by the deceased. The court, on 30 July 1984 ,
granted joint letters of administration to the parties without prejudice to the
plaintiff’s right to bring an action for the determination of the issue of whether or
not the house had been gifted to the plaintiff and her children. Subsequently,
additional properties of the deceased were discovered and applications were
made to the court for their distribution so that by 5 August 1985, the court still
had to make an order on the distribution of a cheque covering an amount being
the refund of the balance of the provided fund of the deceased. On 11 November
1985, the plaintiff took out a writ at the High Court claiming that by the operation
of the Intestate Succession Law, 1985 (PNCL 111) , she and her children were
entitled to the disputed house. The trial judge dismissed the plaintiff’s action on
the grounds, inter alia , that (i) the marriage between the plaintiff and the
deceased had not been registered under the Customary Marriage and Divorce
(Registration) Law, 1985 (PNDCL 112) ; and (ii) the intestate died before PNDCL
111 came into force in 1985 and since the law had no retrospective effect, the
plaintiff could not make her claim under the provisions of that law. On appeal to
the court of appeal
Held: That it was not necessary for a customary marriage to be registered before
a spouse benefit under the Intestate Succession Law, 1985, 1985 (PNDCL 111).
The registration of the customary marriage, in the absence of fraud , would serve
as conclusive evidence of the marriage while a non-registered customary
marriage depending on the circumstances , would have to be proved. In
situations, as in the instant case, where it was not possible to register the
marriage because one of the spouses died before the coming into force of PNDCL
111, it would be absurd to deprive a spouse of his or her rights under the law
simply because such marriage had not been registered. In any case, section 15 of
the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) did

96
not make registration of a customary marriage a condition precedent to the
exercise of a right under PNDCL 111.
Secondly, the Intestate Succession Law, 1985 (PNDCL 111) did not operate
retrospectively, if “by retrospectively” it was meant to affect claims which had
existed some years back. What the Law provided under section 21(1) was a
transitional provision to affect claims or adjudication on such matters of
administration and distribution of the estate of an intestate who died before the
commencement of the Law but which had not been concluded. The effect of that
provision might affect claims existing immediately before the coming into force of
the Law , but that by itself did not make the Law retrospective. Accordingly, for
the Law to operate retrospectively, the following conditions must exist : (i) the
person died intestate; (ii) he died before the commencement of the Law; (iii) at
the commencement of the Law there was pending a claim or adjudication
before the court, a chief, or head of family; and (i) the matter pending must
affect the administration or distribution of the estate of the intestate. In the
instant case, it was obvious that as at 14 June 1985 , when PNDCL 111 came into
force, the administration and distribution of the estate, particularly the house in
dispute, had not been completed since the court had to determine the ownership
before distribution. Thus, on the facts, there was a claim before the court at the
time of commencement of the Law. Consequently, the provisions of PNDCL 111
were applicable to the estate of the deceased.
Per Ampiah JA (as he then was) “In so far as this law is concerned, it has not been
made to operate retrospectively-if “by retrospectively” it is meant to affect claims
which had existed some years back. What this Law provides under section 21(1) is
only a transitional provision to affect claims or adjudication on such matters of
administration and distribution of an estate of an intestate who die before the
commencement of the Law, “pending before the court or a chief or head of family
under customary law at the time when this Law came into force.” The effect of this
provision may affect claims existing immediately before the coming into force of
the Law , but this by itself does not make the Law retrospective. To so operate,
certain conditions precedent must exist, namely:
(I)that the person died intestate; (ii) that he died before the commencement of the
Law; (iii) that at the time the Law commenced, there was pending a claim or

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adjudication before the court or the chief or head of family under customary law;
and (iv) the matter pending must affect the administration and distribution of the
estate of the intestate.”
In Re Sackey (Dec’d): Ansaba v. Mbeah [1992] 2 GLR 271
FACTS : The deceased died intestate on 11 March 1981 survive by a wife and
about ten children. After his death, letters of administration was granted to his
customary successor, a member of his family and the second plaintiff on 9
November 1981 to administer his estate. In 1985, the defendants detected some
errors on the letters of administration and caused the Registrar of the court to
rectify same. Subsequently , the plaintiffs issued a writ against the defendants
claiming inter alia an order that the distribution of the estate of the deceased was
caught by the Intestate Succession Law, 1985 (PNDCL 111) since even though
PNDCL 111 came into force four years after the death of the intestate, his estate
had not been distributed.
ISSUES:
 Whether PNDCL 111 affect intestate estates which were not distributed at
the time the law came into force
 Whether the estate of the deceased was distributed at the time PNDCL 111
came into force
HELD: Section 21(1) of the Intestate Succession Law, 1985 (PNDCL 111) made the
provisions of the Law applicable to the distribution of the estates of intestates
who had died before the commencement of the Law only where a claim or
adjudication relating to the administration or distribution of the estate was
pending before the court, or a chief or the head of family under customary law at
the time the Law came into force. The fact that the estate had not been
distributed did not however mean that a claim or adjudication was pending
because a “claim” meant that somebody interested in the estate had instituted an
action before a court, a chief or the head of family; an “action” included a
complaint, issue of a writ or summons or call for arbitration aimed at
administering or distributing the estate; and an “adjudication” meant that such
action was pending and a decision had not been taken on it. But it was clear on
the evidence that letters of administration had been granted to the defendants as

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far back as 1981. Accordingly, as at 1985 there was no claim , action or
adjudication pending before any court in respect of the estate of the deceased.
The application by the defendants in 1985 for the correction of errors on the face
of the letters of administration did not mean that any action was pending. Since
when PNDCL 111 came into force the court had dealt completely with the
application for letters of administration of the state of the deceased intestate.
Per Benin J “ The ambit of this provision [Section 21(1)] is clearly circumscribed in
the sense that the claim or adjudicating relating to the administration or
distribution of the estate must have been pending at the time the Law came into
force. The fact that the estate had not been distributed does not mean that a
claim or adjudication was pending. By a “claim” it is to be understood in the sense
that somebody interested in the estate had instituted an action before a court, a
chief or the head of family. “Action” includes a complaint , issue of a writ or
summons or call for arbitration aimed at administering or distributing the estate.
By “adjudication” is meant that such action was pending and a decision was yet to
be taken on it. It is clear that as at 1985 there was no claim , action or
adjudication pending before any court in respect of the estate of Amos Sackey.”
“…the application put in by the defendants to correct the errors apparent on the
face of the letters of administration issued to them did not mean that any claim or
adjudication in respect of the deceased’s estate was pending. The application for
letters of administration had been granted by the court and the registrar had
completed the administrative formalities by issuing the letters of administration to
the defendants. If later it was detected that there were apparent errors on the
face of the letters of administration due to the default of the court registrar it did
not mean any action was pending. In fact there was no need for the defendants to
have re-applied to the court to correct the errors. the application should have
gone to the registrar who inserted wrong names and added that it was with a will
annexed contrary to those whose application had been approved by the court
without a will annexed. When PNDCL 111 came into force the court had dealt
completely with the application for letters of administration.”
IN RE ARMAH; ARMAH VRS. ARMAH [1991] 1 GLR 140
FACTS : The deceased who was married to the defendant under the Marriage
Ordinance , Cap. 127 died intestate in 1980. In June 1986, the plaintiff , the son of

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the deceased, applied for letter of administration in respect of the deceased’s
estate. The defendant, his lawful widow , resisted the application and caveated.
Following the failure of the parties to agree on who should receive the grant, the
plaintiff in compliance with the court’s order took out a writ of summons for the
determination of who was entitled to the grant. The defendant also caveated for
a grant in her favour or for joint grant. An issue which fell for determination was
whether Cap. 127 or the Intestate Succession Law, 1985 (PNDCL 111) was
applicable to the action since, even though the deceased had died in 1980, the
action was commenced in 1986, ie. after the promulgation of PNDCL 11.
Held : A strict, literal and grammatical interpretation of the words in section 21(1)
of the Intestate Succession Law, 1985 (PNDCL 111) making the provisions of that
law applicable in the settlement of any “claim or adjudication pending before the
Court…at the commencement of this Law” to mean only actions actually
physically pending in the courts at the commencement of PNDCL 111 would lead
to an unjust and absurd situation. It would mean that where A died before the
commencement of PNDCL 111 but an action in respect of his estate was pending
to be determined by the court, then PNDCL 111 was the applicable law, but
though B also died before the passage of PNDCL 111 but he action in respect of
his estate was commenced after the commencement of the Law, as in the instant
case, then the Law should not be applied. The proper approach in interpreting the
section would be to apply the purposive approach by ascertaining what
inadequacy in the old law PNDCL 111 was intended to remedy. Since it was clear
from the memorandum of PNDL 111 that the object of section 21(2) was to give
expression to the concern of the courts which had constantly lamented their
impotence to remedy the customary law why they had often considered to be
unjust, the legislature would not in the circumstances limit their concern to only
cases physically pending before the courts. Accordingly, a liberal construction
would be offered for section 21(1) of PNDCL 111 and it would be interpreted to
include cases which were commenced after the promulgation of PNDCL 111 as
also pending before the courts, especially since it should be borne in mind that
at that time the old laws had been repealed.
Per Lutterodt J “How can action instituted before the coming into force of the new
Law and which but for the passage of this new Law would have been dealt with
under the old laws of succession enjoy the benefits and rights of the new law but

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an action instituted subsequent to the passage of this new Law, and so whose trial
commences when this new Law is in operation cannot be determined on the basis
of this existing law? And therefore, I would, in interpreting this section, apply the
purposive approach. I would aks why the need for this new legislation. Was the old
law inadequate? If yes, what was this new Law intended to remedy ? In so doing, I
have looked at the memorandum for guidance. It is said that the object of this
section is to give expression to the concern of the courts which have constantly
lamented their impotence to remedy the customary law which they have often
considered to be “unjust”. I cannot imagine the law makers would limit their
concern to only case physically pending before the court. I would offer a liberal
construction to this section and interpret it to include cases which were
commenced after the promulgation of this Law which would also become pending
before our courts, for we should also bear in mind that at this time, the old laws
had been repealed. With the interpretation, therefore, the law which is applicable
to the case would be PNDCL 111, s. 22(1)”

IN RE ARMAH (DED); ARMAH V ARMAH [1991] 2 GLR 53 , C A

The court of appeal upheld the decision of the trial high court judge(supra) and
held that “ the provisions of the Intestate Succession law, 1985 (PNDCL111) were
applicable to the distribution of the estate of the deceased because even though
he died before the commencement of the Law, the fact that the estate had not
been distributed before the Law commenced constituted a matter pending within
the terms of section 21(1). Furthermore, once the property of a deceased had not
been distributed among those entitled thereto then at least in the eyes of the
customary law, matters pertaining to the distribution of those properties
constituted a matter pending before the deceased’s head of family.”
DEVOLUTION OF INTESTATE’S ESTATES
The Household Chattels
Section 3 of Law 111 provides that the household chattels of a deceased intestate
shall devolve on the surviving spouse(s) and children absolutely as tenants in
common-in equal shares.

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‘Household Chattels’ have been defined under section 18 to include : jewellery ,
clothes, furniture and furnishings , refrigerator, television, radio, any other
electrical and electronic appliances , kitchen and laundry equipment, simple
agricultural equipment, hunting equipment, books, motor vehicles, other than
vehicles used wholly for commercial purposes, and household livestock”
WHO IS A CHILD?
The Act does not distinguish between dependent children and adult children-see
section 18 for definition of child. “ child includes a natural child, a person
adopted under an enactment or under customary law relating to adoption and a
person recognized by the person in question as the child of that person or
recognized by law as the child of the person”
IN RE ASANTE (DEC’D) : OWUSU VRS. ASANTE [1992] 1 GLR 214 : On the death
intestate of the deceased his widow whom he had married under Cap 127 and his
adult eldest son by another woman applied to the High Court for letters of
administration to administer his estate. In the supporting affidavit, it was deposed
that the deceased left behind seven children , six of whom were minors and
survived by a widow. The application was granted but before the letters of
administration could be sealed ,one Madam Mary Owusu (MO) entered a caveat
praying that as the mother of the two of the infant children, she should be joined
as a co-administratirx in order to adequately protect the interest of her children.
The application was opposed on the ground that MO had no locus standi and
therefore had no interest in the estate. Before ruling could be given, the
customary successor also applied to the court to be joined as co-administrator
and in his affidavit in support, he disclose that there were two more children of
the deceased. The high court granted both applications however an appeal by the
widow against the inclusion of MO was allowed by the court of appeal on the
grounds inter alia that the minor children of MO and the eldest son of the
deceased belonged to the same degree of priority of grant and since he had been
included in the grant the interest of that degree had been represented in the
administration and again, the joinder of MO who is a concubine of the deceased
with the widow of the deceased might militate against the smooth administration
of the estate. Mary Owusu further appealed to the supreme court contending
inter alia that since the widow lived outside the jurisdiction she (MO) was better

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qualified to participate in the administration in order to protect the interest of
her two minor children.
Held: On who constitutes a child under Law 111 , the court held that section 18 of
the Intestate Succession Law, 1985 defined a “child” to include a “natural child.”
On the evidence therefore the deceased in his lifetime recognized the children of
the appellant as his children. Accordingly , each of them came within the
definition of “child” as provided in section 18 of PNDCL 111. Accordingly, in the
distribution of the assets of the estate , each of them would be entitled to an
equal share of the portion due to all the surviving children. The court however
declined to include Mary Owusu as co-administratrix since she did not fall within
the persons enjoying priority under the grant of letters of administration. The
order of priority was the surviving spouse, surviving children , surviving parents
and customary successor. The court concluded that the joinder of the appellant, a
concubine, as an adminstratrix had the potential of creating inconvenience and
causing confusion which could delay the administration of the estates and besides
there was nothing on the record to show that the eldest son of the deceased
could not protect the interest of his half-brothers and sisters. Therefore, the
eldest son was qualified to protect the interest of his half siblings.
In re Koranteng-Addow (Dec’d): Koranteng-Addow vrs. Koranteng [1995-96] 1
GLR 252
FACTS : The appellant, a natural child of the deceased, applied for letters of
administration to administer his estate. The respondent, a paternal brother of the
deceased and the customary successor from his maternal family both caveated .
The respondent claimed inter alia that contrary to the appellant’s claim that he
was the only surviving child, the deceased had other three children all women. In
support of his claim , he tendered the obituary notices, tributes read by one of
the children at the funeral records of family meetings. The respondent testified
further , that one of the other three children had provided the coffin and drinks
for the funeral. The appellant however disputed those claims and in support of
his case, tendered in evidence an affidavit by another alleged child from the three
in an action she had brought against the deceased in his lifetime in a dispute over
her later mother’s estate and in which she had deposed that the deceased was
her stepfather. The trial judge however accepted the case of the respondent and

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therefore held that the three women were also surviving children of the
deceased. On appeal by the appellant from the decision , the Court of appeal
found inter alia that none of the women had used the deceased name as her
surname and none of the women had also put in a claim for a share of the
deceased’s estate.
Held : The central question for any judge faced with the issue whether or not a
person was a child within the meaning and intendment of section 18 of the
Intestate Succession Law, 1985 (PNDCL 111) was whether the deceased
recognized the person as his child. Accordingly, any non-natural child claiming any
portion of the estate of a deceased should prove that the deceased in his lifetime
recognized the claimant as his child. Once there was a positive proof that the
deceased recognized the claimant as a child, he or she qualified as a beneficiary.
Although one would naturally expect such recognition to be reciprocal in that the
child should also recognize the deceased as his father, in which case reciprocity
would become one of the essential means of proof, the absence of it was no
conclusive proof that the claimant was not so recognized. Accordingly, the exhibit
tendered by the appellant was no conclusive proof that the children(two out of
the three) were not children of the deceased. The court however allowed the
appeal reasoning on the evidence that though all the intended beneficiaries were
adult women fully aware of the death of the deceased, none of them put in an
application for a share in the estate in her own capacity and no affidavit came
from any of them in proof of that fact. Furthermore the assertion that one of the
three children, (IB) was a natural child of the deceased was never proved. The
court also reasoned that since obituary notices, tributes and family meetings
records were not depositions, they could not be preferred to the more cogent
evidence in exhibit X.
Per Wood JA(as then she was) “All the three intended beneficiaries are adult
women fully aware of the death of the man the family claims recognized them as
his children. I find it difficult to believe if they were so recognized, that they
themselves did not know of such recognition, to the extent that none of them put
in an application for a share in the estate in her own capacity. We have not been
told of any proceedings pending and brought by them for a determination of
whether or not they qualify as children. Even more pertinent, no affidavit came
from any of them in proof of this fact. If they were minors perhaps their conduct

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would be understandable. I am not saying that the absence of any such affidavit is
conclusive proof that they were not so recognized. The point I wish to emphasize is
that the court must not overlook this important factor in evaluating the evidence.”
The single house:
Where the deceased died possessed of a single house, section 4(1)(a) provides
that the single house goes to the surviving spouse and children as tenants in
common.
It should be noted that there is no restriction on the location or value of the
house or that it should be the matrimonial property. The simple language is that if
the deceased had only one house it devolves to the surviving spouse and children
in equal shares as tenants in common.
Child under the Act is a child of the deceased, a natural born child or a child
adopted under statute or under customary law relating to adoption and a person
recognized by the deceased as his child or recognized by law as the child of the
deceased.
The fact that the parents were not married are irrelevant to the question of the
person being the child of the deceased.
Several Houses:
Where the deceased had more than one house, then , the surviving spouse (s)
and children have the right to choose one house in equal shares and shall hold
the house as tenants in common. -4(1)(b)Where there is disagreement as to
which of the houses devolve to the surviving spouse or child or both of them,
then the high court can make a determination upon application by the
administrator of estates-4(2)
4 (a) “Where the estate includes only one house the surviving spouse or child or
both of them , as the case may be, shall be entitled to that house and where it
devolves to both spouse and child, they shall hold it as tenants-in-common;
(b) where the estate includes more than one house, the surviving spouse or child
or both of them, as the case may be, shall determine which of those houses shall
devolve to such spouse or child or both of them and where it devolves to both
spouse and child they shall hold such house as tenants –in-common :
provided that where there is disagreement as to which of the houses shall

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devolve to the surviving spouse or child or to both of them, as the case may be,
the surviving spouse or child or both of them shall have the exclusive right to
choose any one of those houses; except that if for any reason the surviving
spouse or child or both of them are unwilling or unable to make such choice the
High Court shall , upon application made to it by the administrator of the estate,
determine which of those houses shall devolve to the surving spouse or child or
both of them.
The Act is silent on the factors to be taken into account by the high court in
making its determination.
By taken the house in equal shares and as tenants in common, then there will be a
problem of sharing and also it implies each has an inheritable or alienable right in
the property.
The estate under this section devolves only to the surviving spouse and children.
See In Re Asante ; Owusu v Asante
The Residue(movables and immovable) :
The residue means what is left for the estate after the household chattels and one
house has been taken by the surviving spouse and children.
Section 18 defines residue as that part of the intestate estate that does not
devolve according to sections 3 and 4.
Section 5 deals with the devolution of the residue when the deceased is survived
by a spouse and children :
3/16 goes to the surving spouse
9/16 goes to child or children
1/8 to surviving parent or parents
1/8 in accordance with customary law.
Theoretically this means that the rest of the estate would be divided into sixteen
parts, with three parts devolving on the surviving spouse, nine to the surviving
children, two to the parents and two in accordance with the rules of customary
law.

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In the absence of parents, the 1/8 th earmarked to parents will devolve in
accordance with customary law hence making the portion that will devolve in
accordance with customary law ¼.
In each of these devolutions, the persons hold them in equal shares as tenants in
common save the portion devolving in accordance with customary law-see
section 14.
For Kludze, these divisions pose serious problems since for instance , the residue
could be house(s) and may lead to fragmentation of the estate and doesn’t allow
the court to decide.
Must read articles :
The Right To Walk In Another Man’s Shoes : The Intestate Succession Act In
Context”
Family provision in Ghana’s Law of Succession-Josiah Aryee
“In spite of a growing complexity in the statutory framework supporting family
provision in Ghana, the concept requires substantial development in depth to
cover and adequately provide for a number of potential claimants. The bare
statutory provisions fail to recognize the entirety and variety of the needs of a
widow spectrum of possible claimants, including step-children , disabled and,
unmarried children as well as the competing moral claims between spouses and
other beneficiaries. Further complicating factors include the claims of cohabitants,
conduct of the spouses, the rights of adopted children , of former spouses not
married, as well as judicially separated couples and their entitlement to apply for
provisions form each other’s estates.
Of the above, the rights of cohabitants probably pose the greatest challenge.
Consenting adults may live together as de factor spouses for a considerable
number of years but without any semblance of a marriage ceremony. Usually, the
customary law recognizes and validates such relationships, particularly where the
union is blessed with children. In other instances, especially where such illegal
unions are perceived as threatening the stability of an established marriage, the
rights of the unmarried cohabitants and the validity of their association as a legal
relationship are not so clear –cut”
 The obligation to provide maintenance in Ghana

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Where the deceased is survived by a spouse(s) but no child –section 6
(1) Where the intestate is survived by a spouse and not by a child the residue
of the estate shall devolve in the following manner :
a. one-half to the surviving spouse;
b. one-fourth to the surviving parent
c. one fourth in accordance with customary law
(2) Where there is no surviving parent one-half of the residue of the estate
shall devolve in accordance with customary law.
No surviving spouse(s) but child or children –section 7: 3/4th to the surviving
spouse or children, 1/8th to the surviving parent(s) and 1/8th in accordance with
customary law. In the absence of a surviving parent, the 1/8 th earmarked for the
parents is allocated to customary law making that of customary law 1/4th.
Survived by a parent but no child and no spouse-section 8: Because there is no
surviving spouse and no children, this is a reference to the entire estate and not
just the residue. Here 3/4th of the entire estate to the parent(s) and 1/4th in
accordance with customary law.
Grandchildren: No specific provision for grandchildren. However, by section 16, a
dependent grandchild at the time of the death of the deceased, whose parent has
pre-deceased the intestate shall succeed to the portion his parent would have
been entitled to if he or she had survived the intestate. The act gives no guidance
on what constitutes ‘dependent’.
“Where a child of the intestate who has predeceased the intestate is survived by a
child who is the grandchild of the intestate , the grandchild is entitled if that child
is dependent on the intestate at the time of death, to the whole or a portion of the
estate which would otherwise have devolved to the parent if that child had not
predeceased the intestate.”
Devolution of residue where customary law is inapplicable-9
“Where customary law is not applicable to the devolution of that part of the
residue which by virtue of section 5, 6, 7, or 8, shall devolve in accordance with
customary law, that part of the residue shall devolve in equal shares to those
beneficiaries otherwise entitled to share the residue under the relevant
provisions of the Act”
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Customary law provisions for succession by family –section 10
Where the rules of succession under customary law applicable to a portion of the
estate provide that the family of the intestate is entitled to a share in the estate
(a) that family is the family to which the intestate belonged for the purposes of
succession in accordance with the customary law of the community of
which the intestate was a member;
(b) in the case of an intestate who, being a member of two customary law
communities belonged to two families for the purposes of succession, that
family shall be the two families
(c) in the case of an intestate who is not a member of a family, that family is
the family with which the intestate was identified at the time of death or ,
failing that , to the families of the parents of the intestate or failing that to
the Republic
Intestate survived by neither spouse, parent nor child-section 11
(1) Where the intestate is not survived by a spouse, a child or a parent the
estate shall devolve in accordance with customary law
(2) Where a customary law is not applicable to the devolution of the estate of
an intestate who is not survived by a spouse , a child or a parent in the
circumstances referred to in subsection (1) the estate shall devolve to the
Republic
(3) Where the estate of an intestate devolves to the Republic under subsection
(2) , and an application is made to the High Court, and the Court is satisfied
that a person who was maintained by the intestate or with whom the
intestate was closely identified , should be maintained out of the estate or
that a portion of the estate or the whole of the estate should devolve to
that person, the Court may make an order for the maintenance of that
person out of the estate or that a portion of the estate or the whole estate
devolves to that person.
Small Estates –section 12 : Where the total value of the residue does not exceed
ten million old cedis (GH1000) ( under Act 111 it was fifty thousand cedis and it
was changed to ten million by the children’s Act), the residue shall devolve on the
surviving spouse or children or both.

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Where there is no surviving spouse or child, but there is a surviving parent, the
residue devolves on the surviving parent
It should be noted however that the Minister of Justice may by a legislative
instrument vary the value stipulated under section 12-Section 13
Sharing of portion of residue by two or more persons-section 14
Subject to the rules of customary law relating to a member’s interest in
communal property, where two or more persons are entitled to share a portion of
an estate under this Act they shall divide it among themselves in equal shares.
Presumption against survivorship-section 15
Where spouses die in circumstances
(a) in which it appears that their deaths were simultaneous, or
(b) Rendering it uncertain which of them survived the other, the older shall, for
the purposes of this Act, be presumed to have predeceased the younger.
Under Section 16(A), ejection of spouses is prohibited.
(1) A person shall not, before the distribution of the estate of a deceased
person whether testate or intestate, eject a surviving spouse or child from
the matrimonial home
(a) where the matrimonial home is the self-acquired property of the
deceased;
(b) where the matrimonial home is rented property, unless the ejection is
pursuant to a Court order;
(c) where the matrimonial home is the family house of the deceased, unless
a period of six months has expired from the date of the death of the
deceased; or
(d) where the matrimonial home is public property unless a period of three
months has expired from the date of the death of the deceased.
(2) For the purpose of subsection (1) , “matrimonial house” means
(a) the house or premises occupied by the deceased and the surviving
spouse, or the deceased and a surviving child or all of them, at the time
of the death of the deceased, or
(b) any other self-acquired house of the deceased occupied by the surviving
spouse or child or both at the time of the death of the deceased
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Interference or Intermeddling with the estate –section 17: Interference or
intermeddling with the estate before distribution is a criminal offence punishable
with a fine not exceeding 250 penalty units or a term of imprisonment not
exceeding one year and the court or tribunal shall make any orders necessary for
the reinstatement of or reimbursement of the person who has been ejected or
victim of the crime.

OTHER CASES
MENSAH VRS MENSAH [2012] 1 SCGLR 391
FACTS: The couple were first married under customary law. The customary
marriage was converted into a monogamous marriage under the marriage
Ordinance, Cap 127 (1951 Rev.). At the time of the marriage, the husband was a
government employee as a junior accounts clerk at the Ministries, Accra. Before
then, the wife used to trade in rice, sugar and groundnuts at the Krobo Odumase
market. after the marriage, the wife moved to Accra with the Husband and lived
in a rented premises at La. They had no property at the time. At the weekends,
the couple would go to Krobo Odumase to farm and plant cassava. After
processing the harvested cassava into gari, the wife realized Gh 60 which she used
as capital for trading. She traded in palm oil and used to travel to various towns
and villages to buy palm oil. The wife also traded in cooking oil, rice and sugar
from their house at La. The husband also sold some of these items to his co-
workers in the office. the Wife at a point in time, took some money from her
father to invest in their business. AS the business expanded, they acquired a shop
at the Ministries which the Wife managed, whilst the husband continued working
at his government office at the Ministries. The couple extended their trading
business to to other products including clothing and electrical appliances like
fridges, television sets and deep freezer. The husband arranged for those items
form their suppliers on credit. They also got their customers from the husband’s
co-workers, mostly on credit basis. The parties acquired substantial properties.
About a decade after the celebration ofh te marriage, cracks started appearing in
the marriage and things turned sour. Eventually, the husband left the matrimonial
home and moved into the couples’ jointly acquired residential property at
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Adenta, Accra. After diligent efforts at reconciliation had failed, the wife
petitioned for divorce. The trial High Court found that the parties had jointly
acquired substantial assets during the subsistence of the marriage including
residential properties at Kasoa, Krobo Odumase, Adenta and Spintex Road, Accra.
The trial court ordered the distribution of the marital properties on equal basis.
the Husband’s appeal to the Court of Appeal was dismissed whereupon the
husband further appealed to the supreme court.
ISSUE : Whether the equality principle used by the trial and appellate courts in
the distribution of the marital property acquired during the marriage following
the dissolution of the marriage between the parties is sustainable under the
current state of the laws in Ghana based on the available evidence on record.”
HELD : That it was quite clear that Article 22(3)(a) and (b) of the 1992
Constitution had espoused the principle of having equal access to property jointly
acquired during marriage and hat of equitable distribution of such property upon
divorce. The court will therefore integrate the principle of “Jurisprudence of
Equality” which had been defined as the application for international human
rights treaties and laws to national and local domestic cases alleging
discrimination and violence against women into our rules of interpretation , such
that meaning would be given to the contents of the 1992 Constitution , especially
on the devolution of property to spouses after divorce. Consequently, it was
unconstitutional for the courts in Ghana to discriminate against women in
particular , whenever issues pertaining to distribution of property acquired during
marriage came up during divorce. There should in all appropriate cases be
sharing of property on equality basis.
The Supreme Court speaking through Dotse JSc held further that common sense
and principle of general fundamental human rights would require that a person
who was married to another, and had performed various household chores for
the other partner like keeping the home, washing and keeping dirty laundry
generally clean, cooking and taking care of the partner’s catering needs as well as
those of visitors , raising up of the children in a congenial atmosphere and
generally supervising the home such that the other partner had a free hand to
engage in economic activities, must not be discriminated against in the
distribution of properties acquired during the marriage when the marriage was

112
dissolved. The reason was that the acquisition of the properties had been
facilitated by the massive assistance that the one spouse had derive from the
other. In the instant case, the wife’s contribution even as a housewife in
performing the household chores, maintaining the house and creating a congenial
atmosphere for the husband to create the economic empire he had built, were
enough to earn the wife an equal share in the marital properties upon divorce.
And, on the evidence the wife had made a substantial contribution to the
acquisition of the matrimonial properties and was therefore entitled to equal
share.
Per Dotse JSC “…even if this court had held that the wife had not made any
substantial contributions to the acquisition of the matrimonial properties , it
would still have come to the same conclusion that the wife is entitled to an equal
share in the properties so acquired during the subsistence of the marriage. This is
because this court recognizes the valuable contributions made by her in the
marriage like the performance of household chores referred to (supra), and the
maintenance of a congenial domestic environment for the husband to operate and
acquire properties. Besides the constitutional provisions in article 2(3) of the 1992
Constitution, must be construed to achieve the desired results which the framers
of the Constitution intended…”

“…the time has indeed, come for the integration of this principle of “Jurisprudence
of Equality” into our rules of interpretation such that meaning would be given to
the contents of the 1992 Constitution especially on the devolution of property to
spouses after divorce. Using this principle as a guide we are of the view that it is
unconstitutional for the courts in Ghana, to discriminate against women in
particular , whenever issus pertaining to distribution of property acquired during
marriage come up during divorce proceedings. There should in all appropriate
cases, be sharing of property on equality basis.
..We are therefore of the considered view that the time has come for this court to
institutionalize the principle of equality in the sharing of marital property by
spouses , after divorce, of all properites acqrueid during the subsistence of a
marriage in appropriate cases. This is based on the provisions in articles 22(3) and
33(5) of the 1992 Constitution, the principle of “Jurisprudence of Equality” and the

113
need to follow, apply and improve our previous decisions in Mensah v Mensah and
Boafo v Boafo (supra). The wife should be treated as an equal partner even after
divorce in the devolution of the properties. The wife must not be bruised by the
conduct of the husband and made to be in a worse situation than she ousl hae
been had the divorce not been granted . The tendency to consider women
(spouses) in particular as appendages to the marriage relationship, used and
dumped at will by their male spouses must cease. Divorce as Lord Denning
stated long ago, should not be considered as a stigma.”

QUARTSON VRS. QUARTSON [2012] 2 SGLR 1077

FACTS : The parties married for twenty five years and had three children. They
acquired various properties including the matrimonial homee which was built
solely with monies sent by the husband at a time when he lived outside the
country. The husband lived and worked from outside Ghana for many year and so
when he remitted the sums for the construction of the matrimonial home, the
wife solely and diligently supervised the construction of same from the
foundation level until it was completely and satisfactorily built and also took on
the responsibility of taking care of the children. A company , Pious Trading and
Construction Co. LTd was also incorporated with the husband holding 60 per cent
shares and the wife holding 40 per cent. The petitioner , the wife petitioned for
divorce at the High Court on the grounds of unreasonable behavior of her
husband and sought inter alia the following reliefs: the husband be ordered to
vacate the matrimonial home; the wife be paid a lump sum of GH50,000 as
settlement of property rights; she be given all her director’s fees and allowances
as a director of Pious Trading and Construction Company Ltd; and that her 40 per
cent shares in the company be quantified and paid to her as part of the
settlement of property rights.
The trial judge dissolved the marriage but dismisse the relief that the husband be
ordered to vacate the house. The corut also awarded the wife a lum sum of
GH350,000 as settlement of property rights in addition to one double plot of land
a vehicle , ie a Nissan Pathfinder. However, the wife was ordered to vacate the
matrimonial home within thirty days. An appeal to the court of appeal was
dismissed save for enhancement of the settlement award form GH35,000 to

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GH50,000. The court of Appeal also held that not having made substantial
contribution to the acquisition of the matrimonial home, the wife had no interest
in it. The wife further appealed to the Supreme Court.
Before the Supreme Court, the husband submitted inter alia that in the absence
of legislative guidelines on property rights of spouses , pursuant to the mandatory
provision in Article 22(2) of the 1992 Constitution, the petitioner wife would have
no share in the matrimonial home. It was also contended that if the framerws of
the constitution had intended the judiciary to take up the responsibility by way of
judicial law-making, they would have expressly stated so.
HELD : The Supreme court held that it was well-established that where a spouse
had made substantial financial contribution to the acquisition of the preoprty
during marriage, pursuant to an agreement or inferred intention by the couple,
the property acurqreuid should be jointly owned. What would however amount
to substantial contribution by a spouse will depend on the facts of each particular
case and that the court of appeal erred in refusing to recognize the wife’s
contribution to the construction of the matrimonial home; and in holding that the
absence of legislation by partliament pursuant to article 22(2) of the Constitution,
domestic services rendered by a wife such as cooking , could not amount to a
contribution by a spouse in a property solely acquired through the financial
resources. The court concluded therefore that the petitioner wife was entitle to a
share of the value of the matrimonial home and that the wife’s inability to
adequately quantify her assistance towards the construction of the matrimonial
home, would not in itself bar her from an equitable sharing of the matrimonial
property. The court noted that the equities of this particular case however did not
call for a half and half sharing of the matrimonial home. However, the wife’s
interest in the matrimonial home had been adequately covered and reflected in
the award of the double plot of land to her by the trial court as affirmed by the
Court of Appeal.
The court refused the relief sought for an order for the payment of director’s fees
and dividends because a company had a distinct legal personality form its
shareholders and directors and unless certain exceptions could be shown , its veil
of incorporation will not be lifted. Therefore, the property person against whom
an action for director’s fees and dividends should be brought would be the

115
respondent’s company, Pious Trading and Construction Co Ltd and not the
respondent himself.
Per Ansah JSC : “…Parliament has till this day, not enacted legislation to regulate
the distribution of jointly – acquired property of spouses upon divorce , as article
22(2) OF THE 1992 Constitution mandates. …due to Parliament’s inaction, the
courts have, over the years , carve out the principle of substantial contribution as
the litmus test for the determining whether or not a case can be made for joint
ownership of property. The courts have therefore held in several cases that
substantial financial contribution of a spouse to the acquisition of property during
the subsistence f the marriage, would entitle that spouse to a share in the
property…
It follows that where a spouse makes substantial financial contribution to the
acquisition pursuant to an agreement or inferred intention by the couple hat the
property acquired should be owned jointly, the court will hold the property to be
jointly owned. It is also clear form judicial precedent that what amounts to
substantial contribution by a spouse is usually gleaned from the facts of each case.
Where the court makes an inference that there was an intention or agreement
that the contribution made would entitle each spouse to a share of the property,
the court would not deny one spouse ownership of the property over the other.
The courts were then left to decide, in the exercise of their discretion and on the
facts of the case, in which proportion the joint property would be shared. This
would be without prejudice to he fact that there might not have been any hard
evidence of the exact amount of financial contribution made or in which
mathematic proportions the contributions were made. After all, the institution of
marriage is not one to which the ordinary incidents of commerce would apply.”
“It is the view of this court that the principle laid down in Quartey v Martey
cannot be allowed to stand in this twnty-first century. Times have changed and
society has evolved since 1959. The world is waking up to the fact that women
play an all important role in the development of society and this role cannot be
whittled away by the inability or difficulty to quantify in financial terms their
contribution in the creation of a healthy stable family environment.”
“In viewo f the changing times, it would defy common sense for this court to
attempt to wait for Parliament to awaken form its slumber and pass a law

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regulating the sharing of joint property. As socity evolves, a country’s democratic
development and the realization of the rights of the citizenry cannot be stunted by
the inaction of Parliament. We do not think that this corut is usurping the role of
Parliament, especially in cases where the inaction of Parliament results in the
denial of justice and delays in the realization fo constitutional rights. As the
appellant [petitioner] put it in ground (v) of her grounds of appeal, the appellant
should not be made to bear the brunt of Parliament’s failure to pass a law to
regulate the distribution of joint matrimonial property.]
“It is our opinion that on the strength of the decision in Mensah v Mensah, the
wife would be entitled on a a share of the value of the matrimonial home. The
evidence is abundantly clear that sh performed her supervisory tasks over the
building ofh te hosue satisfactorily. Even though she was a housewife, she single –
handedly took charge of the household when her husband , the respondent, was
incarcerated for years in Liverpool. We would agree with the reasoning in Mensah
v Mensah that the inability to adequately quantify the appellant’s wifely
assistance towards the construction and upkeep of the matrimonial home, does
not in itself bar her from an equitable sharing of the matrimonial property”
PROBLEMS OF LAW 111
1. Distribution of the Estate –Polygamy and Its Consequences 2 : One of the
most fundamental problems affecting the practical implementation of Law
111 arises from the fact that the drafters of the Law appear to have given
little or no consideration to the issue of polygamy and its consequences in
defining the “nuclear family”. Since customary marriage is potentially
polygamous, a man who dies intestate may leave behind more than one
lawful wife and several sets of children from different mothers whose
interests invariably conflict, but who are nevertheless expected to succeed
to property as co-owners. Even where there is only one surviving spouse it
is possible that there may be children born to the man outside a
monogamous marriage or children of the man or woman from a previous
marriage terminated by death or divorce. In such situations, the
assumption that the surviving spouse of the intestate would be the best
person to look after the children may not hold true. A lot of litigation has

2
Christine Dowuona –Hammond : WOMEN AND INHERITANCE IN GHANA

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 been generated by situations of this nature as can be seen in the case of IN
THE MATTER OF THE ESTAET OF MAJOR KWAME ASANTE (DECEASED)
which involved a dispute between the surviving widow and some of the
children of the deceased, the customary family and a concubine of the
deceased and her children over the grant of Letters of Administration. The
main issue which the court had to determine was whether the concubine
was entitled to be joined as co-administratrix in order to ensure that the
interests of her children in the estate were protected. The High Court held
that the concubine was so entitled, a decision which was reversed on
appeal to the Court of Appeal. Upon further appeal to the Supreme Court,
it was held that evne though the children of the concubine had equal rights
of succession with the surviving widow and her children, their rights were
sufficiently represented by the widow and the eldest child of the deceased
and therefore the concubine was not entitled to be joined as co-
adminstratrix. This case illustrates the complexity of situations which could
arise upon the application of the seemingly simply provisions of the Law
and the potential for conflict and litigation between interested parties.
Further, the issue of requiring several wives or one widow and different
sets of children to choose one out of several of the intestate’s houses also
tends to crate intractable problems. The extreme variations in the interests
of the parties or factions are about to generate a lot of ill-will and litigation.
Where there is more than one lawful wife or one lawful wife and different
sets of children, who have to hold the property as tenants in common, they
may finally be compelled to agree to rent out the house or sell it altogether
and share the proceeds , thereby depriving the widow who lived here of
her matrimonial home.
2. Interests of the widow: 3 The Law primarily seeks to reverse the situation at
customary law under which the widow had no rights of inheritance in the
husband’s estate by prescribing hat specific portions of the estate should
devolve on the widow and children. This approach , however does not
seem to achieve the declared purpose, and in some cases only results in
litigation and the ultimate sale of the inherited , leaving the widow in an
unattractive position. The implementation of the Law has revealed that in
most cases, it fails to ensure adequate provision for the surviving widow
3
ibid

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and dependent children of the intestate before the distribution of the rest
of the estate among the customary family and parents of the intestate.
In certain situations, the application of the provisions of the Law does not
secure for the widow sufficient means of support for herself and the
children of the deceased as intended. In polygamous situations where there
is more than one lawful wife, all of them being entitled to one house and
the household chattels as co-owenrs as required by the Law, this invariably
results in protracted conflicts which in most cases can only be resolved by
selling the house and the chattels and sharing the proceeds. In polygamous
situations, where the deceased left more than one house which could be
conveniently allocated among the widows and their children separately, ti
is difficult to see why the law reqruies all of the widwos and children of the
deceased to inherit only one of the houses and hold it as co-owners ,
creating a situation which is patently unworkable in practice.
Even in cases where there is only one suriving spouse but different sets of
children, the mode of distribution adopted by the Law tends to produce
undesirable results. The statutory provisions which reqruies that the wife
be treated equally as all the children of the deceased could lead to grave
injustice to the surviving widow. Wehre the man died leaving one house, all
the natural and adopted children of the deceased would be entitled to
share equally the house and household chattels with eth spouse. Conflicts
inevitably arise where there are different sets of children with conflicting
interests, each seeking to protect his interest in the estate. Such conflicts
tend to get even more bitter where there are children born to the man
outside a monogamous marriage in some cases unknown to the lawful wife
until the man’s death. The widow is placed in an even worse situation since
she may have made significant contribution to the acquisition of the
properties in question, yet her share would have to be re-apportioned
among her children and other children of the intestate.
The outcome of the implementation of the provisions of the Law is even
more absurd where the deceased left behind more than one house, and the
widow and all the children of the deceased (including those not born to the
widow who may have been residing elsewhere) are nevertheless required
to select only one of htem and hold it as tenants in common. The case of
COLEMAN V AGYARE illustrates this defect in the mode of distribution
119
 adopted by the Law and the need for more flexibility in the approach of the
Law in order to improve the lot of surviving widow. Until his death, the
deceased lived with the widow and their five children in one of his houses,
while the other two children lived elsewhere. The deceased left behind
three houses. One of the children of the deceased applied to the court for a
declaration that she was entitled to one of the houses absolutely because it
had been gifted to her by her deceased father in his lifetime. In addition,
she asked for a declaration that she was entitled to a share of the estate.
The trial judge dismissed the claim of the appellant and, on finding that the
estate had not yet been distributed, ordered, inter alia , that the widow
was entitled to chose one of the houses and enjoy absolutely, while the
children of the deceased held the other houses as tenants in common. On
Appeal to the Court of Appeal, it was held that the trial judge misapplied
PNDCL 111. The Court of Appeal stated that PNDCL 11 does not confer and
right on any of the children or a widow left behind by an intestate, to
choose any of the properties for himself or herself alone. The Court of
Appeal applied strictly the provision in section 4(b) of PNDCL 111, stating
that the law makes no such allowance as referred to by the trial judge in
favour of the widow.
Since the term “child” covers all the natural and adopted children of the
intestate , it was ordered that all the seven children of the intestate should
hold one of the three houses with the surviving widow while the rest of the
estate was distributed according to the provisions of the Law as stated. the
merit ni the approach adopted by the lower court as Dowouna suggests is
quite apparent even though the Law does not endorse it. The practiacal
problems created by the strict implemtation of the Law in such
circumstances and the conseuqences for the sruvinig widow are obvious
and it is difficult to understand why an alternative mode of distribution
could not be adopted by the courts to improve the lot of the surviving
widow. The law does not seem to allow for any flexibility in the mode of
distribution even where the estate is substantial and could be conveniently
allocated among the different groups so as to eliminate potential conflicts
and preserve the estate.
3. Definition of Child : The definition of “child” under the law has also given
rise to a number of difficulites in implementation. It has been observed that
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 the Law seems to assume that all the children of the deceased are equally
dependent on him and thus makes no distinction between dependent
children and those who are self-supporting adults, who in no way are
dependent on the intestate. Even though it is clear that the Law set out to
provide protection for widows and young children of the intestate who are
dependent on him, its prescriptions do not allow flexibility in the
distribution of the estate to ensure that the surviving widow and
dependent children are taken care of before all others. A situation, is
therefore ,created where a self-supporting adult child of the intestate could
claim equally as a child who is a minor is fully dependent on the Intestate.
Also under the provisions, such self-supporting adult children are entitled
to a larger portion of the estate than a dependent aging surviving parent.
Even though all the children of the deceased should be entitled to a share
in the estate , greater equity would be achieved if the Law made sufficient
provisions, first of all, for the widow and dependent children before the
devolution of the rest of the estate to others.
4. Role of Customary Family : In its bid to protect the interest of the widow
and children of the intestate, Law 111 inevitably diminished the significance
of the role of the customary family, a fact which is reflected in the
provisions on the distribution of the estate. Prior to the enactment of
PNDCL 111, the customary family performed a central role in the life of an
individual, especially among rural people and the urban poor. It was
common for the customary family to sponsor the education of deprived
members of the family and provide security and support for such members.
The customary family also usually contributed towards the funeral of its
members, including those who were destitute . With the introduction of
Law 111, which gives priority to the nuclear family to the detriment of the
customary family, ti has beomce clear that the customary family now has
less reason to make massive investments in the lvies of its members
especially the needy ones, ince upon their death most of their estate goes
to their nuclear family. It would seem, therefore, that the protection
provided to the deceased at the cost of sacrificing almost entirely , the
crucial role performed by the customary family. It is essential that some
strategy be devised to ensure the continued support of the customary

121
 family even after the enactment of Law 111 , especially among rural people
and the urban poor.
5. Administrative and Enforcement Obstacles : It is significant to note also
that attempts to enforce one’s rights under the Law may be seriously
hampered by fiancnial consdierations. An application to the courts for the
enforcement of the provisions of Law 111 in one’s favour, in most cases,
involves the services of professionals, including lawyers, valuers,
accountants etc. In some cases, a significant portion of the estate would
have to be sold for payment of fees for such services which are
indispensable if the application is to be successfully pursued.
Legal aid would be a useful option , especially in the case of small estates,
and wehre the claimaing spouse and children do not have adequate means.
Excessive funeral expenses also tend to whittle away the estate of a
deceased, elaving the beneficiaries very little.
6. FRAGMENTATION OF THE ESTATE : Eventhough the law had as one of its
objectives the prevention of fragmentation of the intestate estate, the
application of its provisions, in some cases, inevitably leads to
fragmentation of the estate. The specific proprotions of the residue
allocated to the various beneficiaries under the Law inevitably result in the
fragmentation of the estate especially where there is more than one
spouse and different sets of children. In case wehre there is one lawful
fiwfe nad other children born outside the monogamous marriage, the
lawful wife may find that what was to go to her and children would have to
be re-appotined among her children and other children of the man, some
of whome she may have never heard until the death of her husband. More
often than not, different wives and different sets of children have
conflicting interests, making it impossible for them to hold and retain the
property as co-owners. In practice, therefore, the parties are compelled to
convert the property into cash and share the proceeds instead of retaining
it.
In some cases, determining the various proportinos of the estate which
should devolve on particular beneficiairs is almost impossible without
converting the property into cash. Wehre the residue consists of oen
composite property such as a hosue or a farm, ti is almost impossible to
determein or allocate specific propritinos as required by the Law without
122
 converting the property to cash, and thereby reducing the economic value
of the property.
Further, where the intestate is a member of two customary families, the
proportion which has to devolve in accordance with customary law would
have to be split up requiring that the one eight portion be further divided
into two. Where the intestate is survived by two paretns living apart or
divorced, the portion allocated to them would have to be split up requiring
that the one eight portion be further divided into two. Where the intestate
is survived by two paretns living apart or divorced, the portion allocated to
them would have to be dived into two leading to the further fragmentation
of the estate.
7. IGNORANCE OF THE LAW: As a result of the high rate of illiteracy,
especially among rural people and the urban poor, a lot of women who
were itneded to benefit form the protection afforded by Law 111 remain
unaware of the existence fo the Law or its effect on their rights of
succession upon the death of their spouse.
8. ADMINISTRATION OF ESTATES UNDER PNDCL 111 : Upon the death
intestate of a person, the beneficiaries of the estate are required to applyto
the courts for the grant of letters of administration before the estate can be
administered. Under the Administration of Estates Act, 191, (Act 63)
persons with interests in the estate have to be represented when such an
application is made for the letters of administration. Traditionaly the courts
have considered the family of the deceased as the competent body that is
authorized by customary law to appoint a person to take charge and
control of the property of the intestate. With the introduction of the
Intestate Succession Law, which severely limits the beneficial interest or
share of the customary family in the estate of the intestate, the customary
family ahs been less and less inclined to cooperate fully with the nuclear
family of the deceased resulting in delays in the selection of a successor
and the application for letters of administration for the speedy
administration of the estate.
9. For Mensa-Bonsu, “Many of the problems inherent in this Law are a result
of the fact that there are some underlying assumptions of the law which
have been proved incorrect. One of these is that the customary family no
longer serve any purpose at all during the lfie or upon the death of a
123
 person. Another is that all children of deceased persons are infants and
therefore, more deserving of protection than widow(er)s. Still yet others
are : that all these references to application to the courts do not involve
expenditure; that the spouse would always be the natural parent of these
children; and that everybody would have some property worth inheriting.”
4

10.Mensa –Bonus argues that the assumption relating to the children has
proved to be incorrect because it is not every child who is an infant and
dependent on the deceased. The result of the effort to protect ‘children’
therefore is that even adult children of the deceased, earning decent
incomes, are entitled to more of a deceased parent’s estate than an aging
or aged dpendent spouse. Clearly, from the Memorandum, the legislator
was concerned with the ‘plight of widows and children’. That in itself is
suggestive of the notion that infant children and widows were the ones the
law set out to protect. However, the formulation is such that adult and
infant children are treated alike. She concedes that there are strong
considerations of justice for so doing since a person’s age does not change
the status of ‘child’ vis-à-vis one’s parents. However, the question as she
poses is whether the need to protect the interest of adult children is the
same as for infant children. If not then whey the formulation not reflective
of this difference?
11.On the assumption of the surviving spouse always beign the natural parent
of the children, mensa-bonsu argues that this is wrong for various reasons :
- The law itself envisaged the possibility of a deceased man having more
than one lawful spouse, and yet operated as if all valid marriages were
monogamous.
- In a society where extramarital relations of males are not frowned upon,
there are several children who have been born outside the matrimonial
home, and yet the implications of this appears to have been ignored
- Some children are also the product of a previous marriage of the
deceased which was terminated either by divorce or death and would
thus not be the natural children of a surviving spouse.
Therefore she says “ To assume therefore that every surviving spouse
would be a natural parent of the children, is to turn one’s back on the
4
Mensa-Bonsu : THE INTESTATE SUCCESSION LAW OF GHANA : PRACTICAL PROBLEMS IN APPLICATION

124
 realities of our Ghanaian situation. Indeed the facts of Coleman v
Shang , should have served as a reminder of the multiplicity of interests
that could be created even by serial monogamy. This assumption has
therefore led to a complication of the underlying equation which was
envisaged by the Law as “family versus spouse and children”.
12.Another problem of Law 111 is the problem of the ratio division. What is
3/16 of the residue of an estate? Assuming that the residue consists only of
one other immovable property , how does one assess 3/16 , or 9/16 or 1/8
of that property? Thus the only logical solution to this problem may be that
they would have to dispose of the property and divide the proceeds
according ot the formula stated in PNDCL 111. How much each party may
get would depend on how much the property itself was worth and how
many the parties are. Here again the problem of polygamous marriages
rears its head. If the spouse is entitled to 3/1 of the residue, the deceased
contracted nine marriages 5, how would the nine spouses , if they all
survived the deceased, split this fraction in order for each to get
something?
Apart from this , it could be that the residue comprises some profitable
business, and if there are major disagreements, the business may be sold
off and the people who were actually targeted by PNDCL 111 to be the core
beneficiaries may actually lose out in the end.
13.Again, under PNDCL 111, provision for the education of a minor child is
palced in the residue of the estate, in section 5. This is a problem because
what if the estate of the deceased is such that after het household chattels
and the house have been taken, what remains is not enough to cater for
the education of the minor? Also, while a minor is generally considered to
be a person of less than eighteen years 6, it is trite knowledge that given the
peculiar circumstances in Ghana, a person between eighteen and twenty –
four years may not be able to support himself /herself through whatever
level of education training he /she may be in. The law therefore places a
burden on the person, because it is very possible for the administrator of
the estate to declare that on turning eighteen , the estate would no longer
cater for his/her educational training as it was only bound to do so till he
5
see for example Bamgbose v Daniel [1955] AC 107
6
Section 1 of the Children’s Act, 1998 (Act 560)

125
 /she attained that age. The nineteen year old, while not a minor, may be
placed in very difficult situation , and even if he /she may seek some
redress from the courts, that will still be at some cost.
14.Lastly, the law is silent on property jointly acquired by the spouses in the
lifetime of the deceased.7 Though this may not appear to some to be a
problem because of nemo dat quod non habet, and therefore there can be
no distribution of what was not the property of the deceased, it appears
there could be a problem particularly where there are other children
outside of the marriage. Per section 3, and 4, they will hold the house,
together with the surviving spouse, as tenants in common. The question
may again be asked : what if the house was jointly acquired by the
spouses? Why should the surviving spouse hold equal, indeterminate
interests with the children, including adopted children, and any other
recognized by the deceased as such? It appears here that the surviving
spouse’s legitimate half of the house is subsumed into the general property
and there is no distinction, which could give him/her a larger interest in the
house in question. Again, what if the house was acquired by the deceased,
but other properties were joint acquisitions? Will the surviving spouse’s
interest be automatically distinguished before the rest falls into the residue
of the estate, or will he /she have to incur extra legal costs for his/ her joint
interest to be recognized before the distribution of the residue of the
estate is done according to sections 5, 6 or 7?
15.Check Dr. Arye’s argument in relation to cohabitants

THE INTESTATE SUCCESSION BILL

Rationale :
The Intestate Succession Bill has been introduced to Parliament, and it
seeks to address the problems identified supra.
HOW THE BILL DEALS WITH THE PROBLEMS OUTLINED SUPRA
 In the first place, the problem of polygamous marriages has been treated
somewhat by the Bill. It recognizes not only multiple spouses, but also
cohabitees where the people cohabited and held themselves out in public
as man and wife. In clause 6, there is provision for the distribution of the
residue of an intestate who had more than one spouse or also cohabited
7
This view is from Maame Abena Mensa-Bonsu

126
 with another person where they held themselves out as man and wife. This
is an improvement in the existing law, for PNDCL 111 appears to ignore the
fact that there are many people involved in polygamous situations. In that
same clause, the portion of the estate has been enlarged for multiple
spouses to share, that is, from 3/16 to fifty per cent, thereby giving a
greater portion of the residue of the estate to the surviving spouses.
 The Bill also recognizes the possibility that the surviving spouse has no issue
, but the deceased had children outside the marriage. In the memorandum
to the Bill, it states that such situations, which were not envisioned by
PNDCL 111 has often led to acrimony. Thus to prevent such situations, the
Bill proposes in clause 15, to give specific portions of the estate to the
spouse and children. It is submitted that as this clause does not speak of
residue, but only says the estate, it appears that neither the provision for
the household chattels in clause 3, choice of house in clause 4 applies here,
and therefore the distribution of the entire estate including the household
chattels and house(s) are all part of this distribution method. This then
eliminates the situations where the spouse has to share property with
children born of either a previous marriage/ connection, or adultery.
 The problem of division of an estate into fractions appears to be improved
with the change suggested by the Intestate Succession Bill, where the
property is spoken of in terms of percentages. For example, instead of
surviving spouse being entitled to 3/16 of the residue of the estate which is
quite difficult to even imagine, in the Bill, he /she would be entitled to
thirty –five per cent, or fifty per cent where there are multiple spouses. This
makes the distribution appear much simpler matter than under the existing
law where one calculates in fractions before distributing the estate.
 Further, the Bill, in clause 12 proposes to deal with the problem of the
education of the children of the deceased noted in section 5 of PNDCL 111.
In the Bill, the education of the children is dealt with before the
distribution of the estate, to prevent the fore-mentioned situation where
what remains after the house and chattels have been removed is not
sufficient to provide for the educational training needs of the children. The
Bill then appears to put the educational needs as a more important factor
to be considered in disposing of the assets of an intestate than the existing
law does.
127
 The Bill also foresees that there could be instances where some of the
children of the deceased are not dependents at all. In fact, it is possible that
some of the children are even wealthier than the deceased intestate parent
and therefore on the balance of needs, should have a lesser interest in the
parent’s property than those who are actually dependent children.
The Bill defines a dependent child in clause 12 (3) as either one who
depends on the intestate for the payment of education fees and provision
of other necessaries, or one who is incapacitated and depends on the
intestate. This is a major improvement because the existing law purports to
treat all the children equally to ensure fairness, without taking into
consideration that in some instances, this equal treatment may actually
wreak unfairness to some of the children.
 Lastly, where a spouse jointly owned property with the deceased, other
than the matrimonial home, the Bill gives to that spouse seventy –five per
cent ownership, that is, the fifty per cent already belonging to the spouse
by virtue of the joint acquisition , plus twenty-five per cent of the interest
that had belonged to the deceased spouse. This seems to be an additional
security for such a surviving spouse such that he / she gets a larger portion
of such properties, and eliminates the potential disagreements et cetera
that may arise under the existing law which does not recognize this
possibility at all.-clause 10 defeats rights of survivorship tho
 look also at clause 8 dealing with the matrimonial home : how do you
reconcile the decisions in Mensah v Mensah & quartosn and quartson where
under under the bill they demand contribution+-the act defines contribution
and you will realise that the contribution explained is same as that provided
for under the cases ( the section is not really necessary
 for kludze the matrimonial house should be given to the spouse for life oto
avoid the conflict which arises

PROBLEMS IN THE BILL

 The Bill has not been able to deal thoroughly with the problem that
polygamous marriages pose to the house, and household chattels because
there is still the provision that the spouse or child or both are entitled to
the household property of the intestate. Unfortunately for multiple
spouses, the definition part of the Bill defines only spouse, but does not say
128
 that the word “spouse” should include “spouses”. Does this mean then that
only one spouse is entitled to the household chattels with the children? Or
is the court to apply a purposive approach, despite the definition provided,
in order to cover for the other spouses, where there is more than one?
Again, the multiple spouses may still have to share one house , even where
there is more than one house in the estate, because clause 4 only gives the
choice of one house to the surviving spouse where there is more than one
house. This does nothing to solve the issues that ay arise when there are
two or more spouses, and more than one house because even if the houses
are enough such that each spouse could actually have one, the Bill does not
allow them to do so, and it appears the acrimony it identifies as arising
between a spouse and children born outside the marriage may also exist
between different spouses who are forced to share one house.
 With regards to the problem of the marginalization of the extended family
in PNDCL 111, the Bill appears not just unable to solve it, but to even
worsen the situation. Under the Bill, there is an even greater portion of the
estate going to the surviving spouse and children than there is in the
existing law. As already mentioned, the extended family, in their own way
and in certain situations, may go, sometimes to great expense, to either
cater for the education of some of the members of the family or to
participate or perform rites/ rituals which cannot be dispensed with. Thus
allowing them to benefit in some ways from the estates of their intestate
family members is one way to foster further participation and support of
the family in the lives of its members. The Bill also operates , per its
memorandum , on what has already been argued is a misconception, that
the nuclear family is now the central type of family system there is in
Ghana, and thus appears by its provisions, to marginalize the extended
family even more than the existing law does.
 The Bill fails to deal with the problem of ratios and the possibility of the
property being disposed of in order to deal with the sharing issues.
Although it is mathematically simpler to calculate in percentages, this
appears to just be whitewashing the matter, as it still does not remove the
problems of splitting an estate into 50, 40, or 10 per cent. Thirdly, the
marginalization of the extended family, as has been discussed above is even

129
 more apparent in the Bill than it is under the existing law with bigger
portions of the estate going to the nuclear family.
 Another problem is the entitlement of the spouse(s)and children to a house
which under PNDCL 111 is guaranteed by section 4. In the Bill, this
guarantees taken away as now , where there is only one house the
surviving spouse and children would no longer be entitled to have it as they
are under the existing law. In fact, they are not entitled to any house at all,
where there is only one house.
Even where the surviving spouse contributed to the acquisition of the
house, he / she is entitled to more than fifty per cent of the entire estate,
and not more than fifty per cent of the house itself. It appears that where
there is only one house, that house is treated as part of the whole estate,
and not separated from it to be given to the spouse and/ or child as under
PNDCL 111, and thus the Bill robs the spouse and children of the guarantee
of a house which at least under the existing law, they are entitled to. The
only thing that the spouse is given, in clause 9 , is the option to buy out the
other beneficiaries, who are actually not mentioned in the Bill at all. Who
are the other beneficiaries ? Is the court to infer that this refers to the
children of the intestate who are not mentioned at all where there is only
one house in clause 4(1)?
Again , the surviving spouse has only a fifty per cent share in the
matrimonial home (clause 8) unless he /she contributed to the acquisition
of the matrimonial home then it is more than fifty per cetn, but we are not
who is to have the other fifty per cent. Does it fall into the residue of the
estate to be distributed? or again, should it be read purposively to mean
the children of the intestate ?
The problem noted above begs the question : what is more than 50% of an
estate? Is it 51% ? Is it 55%? Such an indefinite sum is definitely recipe for
trouble and a lot of haggling between the beneficiaries as there is no figure
as more than 50% and the Bill leaves no means of arriving at what exact
figure is meant by more than fifty percent of the estate.
 Thirdly, there is the provision for the educational training of a child. How
long is the education to continue? It is not indicated whether the cild
should be a minor, or whether it refers to anayhoen who was recognized by
the deceased as his/her child regardless of the age of the person. This is the
130
 problem because it may open the way for thirty-five year old whose parent
was helping with his education to claim a benefit under that provision.
Wehre there is more than one child undergoing some educational training ,
in addition to the 35 year old, it may mean that the children who are
unable to cater for themselves or their education have to share what
finances there are, with the much older person for whom it is certainly
easier to attain some kind of employment ot help with his education.
 Fourthly the definition of “spouses” in the Bill includes not just spouses
properly so-called, it also includes cohabitees where the man and woman
held themselves out to the public to be man and wife in accordance with
the Property Rights of Spouses Act (clause 29). This may create problems
where one section of the public may know oen person as the lawful
husband or wife, and another section of the public knows another one as
the lawful husband and wife. This for example could be the case where a
man marries one person , but has other women with whom he cohabits
regularly. The two or more women may not know each other at all, and
may not even know of the existence of the other. On the death of the
deceased, they suddenly become co-inheritors of the estate, sometimes in
equal proportions. The disagreements and the problems this could create
are anyone’s guess. In this same example, where the spouse has
contributed to the building up of the man and offered services to him for
about thirty years, and the other woman has been cohabiting with the man
for only five years, it seems patently unfair to ask them to share fifty per
cent of the estate equally.
 Lastly, the Bill is rather discriminatory in its language , and assumes that the
surviving spouse is a woman. This is seen particularly in clause 15, which
makes provision for where the intestate is survived by a sopuse and the
children of another woman. There is no mention of a spouse and the
children of another man. This appears to be based on the examples given
by the cases wehre most of the time , the disadvantaged person was a
widow or child, and also on the assumption in most Ghanaian communities
that the man is self-sufficient and thus less vulnerable, and also that the
man is not dependent on the woman. This would leave a gap in the law
where a dependent man with the children of the deceased woman’s
connection with another man are not covered specifically by law
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 PROPOSALS FOR REFORM 8
 I think that it is abosolutely right that the education of the children of the
intestate be catered for out of the estate of the deceased before even the
house and chattels are shared, as the Bill proposes. However, there should
either be an age limit or an educational level limit so that an able-bodied
person, or at least one who is more capable of paying his way should not be
able to benefit unduly from the estate of the deceased parent. So that the
law would be hat the educational fees of the child should be provided for
up to the time the child finishes his /her first degree, or if he /she should
wish/ be better suited to a vocational training, the estate of the deceased
should cater for such training, and also help the child financially to establish
him / herself in her chosen trade. This would ensure that the person is
adequately provided for up to the time he / she can be reasonably
expected to be able to fend for him/herself first, before the adult child
studying for a doctorate degree is catered for as he / she is more likely to
be able to find work to help provide for whatever educational needs than
the younger one would
 I strongly disagree that cohabitees should be included in the definition of
spouses in any law relating to succession to properties, where the person
was already lawfully married under any system of marriage. The law is
complicated already, as it is, and conferring on people a status , which is
not legally recognized otherwise, is to further complicate matters. I
however think that the exception can be made where there is no lawful
spouse at all, in which case, there will not be too much wrangling over the
deceased’s property, between surviving spouses who are aggrieved at not
just having to share the property with the issue of the adulterous
connection, but also with a rival whose sole claim to the property is on the
basis of adultery. It adds insult to injury, particularly where the lawful
spouse was unaware of the existence of the said rival, only to discover that
awful fact, and also have to share what should legally have been for him/
her and children.
 Another proposal for reforming the law on intestate succession is that
there should be proper or ascertainable figures. The Bill proposes such
things as “more than fifty per cent” which, as has been argued above, is not
8
Maame Abena Mensa Bonsu

132
 a proper figure or sum, and could lead to myriad difficulties when it is time
to decide what exactly is meant by “more than fifty per cent.”
 Where there is more than one spouse, and more than one house, such that
each may get a house, I propose that they should each get one, in order to
eliminate the problems stemming out of all the spouses being entitled to
only one house equally as appears to be the case under the existing law.
Another way to deal with this is to state that if each of the spouses lived in
a house owned by the deceased, then they should each be allowed to own
the house where they lived, and if not, then whoever was living in the
house owned by the deceased should take it with all the children, while
other spouses should be given equivalent compensation/ housing.
This may give support to the intetions of the deceased while he / she was
alive, as if he /she had wished to, he / she have installed whoever spouse
he /she preferred in the house owned. I do not think thtere is any reason
for a spouse who may have never seen the house before, to suddenly
become as entitled to it as the oen who has expended effort and perhaps
resoruces into keeping the house, and maintaining it.
 Finally, I propose that the provision for a parent should also include parent-
in-law if in the lifetime of the deceased he /she was helping to provide for
them. On the death of such a benefactor, the in – laws may be hopelessly
deprived of the benefits that they obtained while the intestate lived. This
problem would be brought into even sharper relief if the parent of the
intestate was actually quite wealthy and did not need the provision made
for them by the existing law, while the insolvent and dependent in –law
would be excluded from any benefits on the death of the deceased.
Including the in-laws would therefore help to also protect another group of
dependents.
 if you are talking about the fact that the act under 1(3) applies to self
acquired property then why do you capture joint property under the Act.
TESTACY UNDER CUSTOMARY LAW
Will includes samansiw and any other form of will recognized at customary law-
section 18 of PNDCL 111. Section 19(3) of Act 360 also stipulates that the Act
shall not affect the validity of an oral testamentary disposition made in
accordance with customary law. Samansiw is Fanti and Shamansho is Ga. Literally
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it means ghost behest. It is seen as a deathbed oral dispositions of self-acquired
property which takes effect after death of the testator as was held in Atuahene v .
Amofa.
Origin of the nuncupative will
For sarbbah, customary law knew nothing of wills in writing. and in matters of
testamentary dispositions the members of the family exercised much influence.
Although he did not specify the nature of the influence, he did indicate elsewhere
that such testamentary dispositions are nto be disregarded. According to Sarbah,
Where the owner of the self-acquired property gives testamentary directions as
to its disposal among the members of his family, who thereby take such property
as heritable or ancestral property, the person, who would otherwise have
succeeded to the deceased, cannot ignore such dispositions, and the persons
benefited have a right to enforce bequest. He explains that it is not only the death
bed that a man can make a testamentary disposition. A person can make his
testamentary disposition while enjoying perfect health; but at the time it is made,
the witnesses must be distinctly told by him his words are samansiw, to take
effect after his death. In Saarah v Asuah, a man who was enjoying perfect health
made a samansiw and it was held to be valid. However, other schools of thought
are of the opinion that it must necessarily be a deathbed declaration: In Re
Armah; Abaidoo v Awotwi; Prempeh v Agyepong
Prempeh v Agyepong (SC) : The deceased, a lawyer lived with the appellant as his
girlfriend in the disputed house. Before his death, the deceased sought to make a
will (exhibit 1) and instructed his clerk to type it for him. However, the will was
not finalized as it was not signed by him and attested to by witnesses before he
died. After his death, the appellant claimed the house as her personal property.
The respondent , the customary successor of the deceased sued for a declaration
that the house was the self-acquired property of the deceased and as such , fell as
part of his estate. The trial court held that, although the house was the personal
property of the deceased, the failed will constituted a valid samansiw and as such,
the appellant was entitled to the house as under the will. The respondent
appealed and was given judgment. On a subsequent appeal to the Supreme
Court,

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Held: That the essentials of a valid samansiw are self-acquired ownership in the
testator, his sanity at the time of the declaration and attestation by credible,
disinterested witnesses, two at least in normal circumstances, but one
permissible in extreme exigencies. Also , the cardinal principle in the construction
of wills was that they should be so construed as to give effect to the intention of
the testator since the essence of a will was the declaration of the wishes and
intention of the testator. In Ghana there were two forms of wills, statutory and
customary law will. The deceased had intended to make a statutory will because
he had specifically excluded a will under customary law and in any case at the
time of writing exhibit 1 the deceased did not have any fear of imminent death.
Accordingly, exhibit 1 which had failed as a will for not fulfilling the requirements
of Act 360 , could not be honoured as a samansiw.
The nature of a nuncupative will
A subsequent samansiw does not necessarily cancel or revoke a previous, ‘unless
it is incompatible therwith. Ollennu remarked that samansiw bore little in
common with the English nuncupative will and rather bore close resemblance to
the donation mortis causa.
Capacity to make a customary law will
According to Ollennu , two classes of persons may make samansiw of a defective
form: first persons of unsound mind, minors, extremely old people or those in
their dotage are incapable of making samansiw and therefore a samansiw made
by them or made through them is null and void ab initio; second, a person in
wrath, or in excess of joy , or under the influence of drink is capable of making a
voidable samansiw. No minimum age is required. The testator must be of sound
mind at the time of the making of the will.
Persons disqualified from making samansiw : A person of unsound mind, an
infant, a person who is senile, a person under influence of terror, fraud or alcohol,
a person suffering from an excruciating pain or is in a muffled state.
Mentioned must be mad of the fact that the samansiw must relate to the self –
acquired property of the testator and he must be compos mentis.
Development of Nuncupative Will by the Ghanaian Courts

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In both In Re Anaman and In Re Otoo, it was held that a party to a marriage
under the Marriage ordinance 1884 was incapable of making a valid samansiw.
However the Court of Appeal in Coleman v Shang disagreed with the decision in
In Re Otoo. The court held that the right of a married person to make a will
depends on the law of his domicile relating to wills and not upon the system of his
marriage…the making of a will is not a matter which arises out of contract of
marriage, consequently a person subject to customary law, though he may be
married under the Marriage Ordinance, may make a valid samansiw nuncupative
will.
Essentials of a Valid samansiw
Ollennu J gave out the essentials in the case of Summey v Yohuno as follows :
 The disposition must be made in the presence of witnesses who must hear
what the declarations is, and know its contents
 Members of the family who would have succeeded to the testator upon
intestacy must be among the witnesses in whose presence the declaration
is made
 There must be acceptance by or on behalf of the beneficiaries indicated by
the giving and receiving of drinks
Witnesses
The requirement for witness is designed to ensure both attestation and
knowledge of the nuncupative will. On the other hand, the presence of family
members, especially those who would have been entitled upon intestacy, resolves
possible conflicts about the deceased’s property. It is for publicity and proof. A
court would refuse to enforce a samansiw which is made in deliberate secrecy-In
Re Okine ; Doddoo v Okine. In Abenyewa v Marfo, it was stated that a single
credible witness would suffice.In Hausa v Hausa, it wash eld that there must be
at least two reposnsible and disinterested witnesses for a vliad oral will at
customary law. In Prempeh v AGyepong, the supreme court stated that there
must be attestation by credible, disinterested witnesses, tow at least in normal
circumstance, but one permissible in extreme exigencies.
The essentials were restrated by Ollenu J in Akele v Cofie. In Abenyewa v Marfo,
Taylor J laid down a more elaborate test:

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  Only the self-acquired property of the testator of sound mind can be
disposed of by samansiw
 The disposition must be made in the presence of the witnesses and must be
told that the bequests are the testator’s samansiw to take effect after his
death
 The family of the testator must know and consent to the disposition
 There ought to be an acceptance of a gift evidence by the offering of a drink
or the exercising of acts of ownership or any act which an acceptance can
be inferred depending on the circumstances of the case
Acceptance
With regard to the third requirement, On this requirement, Kludze maintains that
it is a mechanistic approach which over formalizes the procedure beyond the
contemplation of customary law. This is because it is preposterous that a dyign
man at the brink of death will be receiving thanks from a prospective beneficiary
as it be construed as an expression of the beneficiary’s anxiety to see the early
demise of the testator. As it is not clear whether the presented drinks must be
accepted or recived, it means it would be fatal if the family of the deceased does
not accept the drink.
It was held in Saarah v Asuah that the absence of a member of the donor –
testator’s family from the declaratory and witnessing processes for a samansiw
renders the gift invalid. The actual form of declaration may vary from community
to community. Thus in Brobbey v Kyere the court found that the declaration ahs
been confirmed by the deceased’s great oath prior to his death. In this case, the
presentation of drinks or aseda was not necessary for the validity of the
customary law will. It would therefore appear that Summey v Yohuno was
decided per incuriam, but it ws affirmed by the court of appeal and it has been
followed. In the case of Abenyewaa v Marfo, it was stated that the requirement of
the family’s consent to perfect any form of alienation is no longer good law.
Hausa v Hausa in In Rer; it was held that thanks-giving or aseda was only
evidentiary and unequivocal evidence of acceptance. However , it could not be
construed as sine qua non for the validity of a customary law will. Similarly, the
presence of witnesses are needed so as to satisfy the courts, bearing in mind the

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question of credibility. For this reason, no minimum number of witnesses can be
prescribed.
Enduring attributes of samansiw
In Prempeh v Agyepong, it was stated that the pristine formulations of Sarbah ,
Rattray and Ollennu have yielded three simple rules namely the self –acquired
ownership in the testator, his sanity at the time of the declaration and attestation
by credible , disinterested witnesses, two at least in normal exigencies, but one
permissible in extreme exigencies
Proof of Samansiw
Where the validity of a customary will is challenged , the onus of proof lies on the
donee. Mensah v Kyere
Co-existence between samansiw & statutory wills
Where it was recognized by a person’s customary law, a Ghanaian would not be
deprived of making samansiw merely because he had made a will under the wills
Act. The validity of the samansiw made after a statutory will would be restricted
to portions of the estate which have not been effectively disposed of by the
statutory will. It must refer to the same estate but not the same property in order
to avoid a clash . Where there is a conflict, the written will prevails. Samansiw or
customary law will can therefore only co-exist with the stattory will to the extent
that there was no inconsistency. A statutory will could not therefore be amended
by an oral samansiw validly made. By Section 5 of the wills act, any alteration to
a statutory will has no effect unless it was separately executed as a will and by
section 9, the methods of revocation of a will are by another statutory will,
tearing or physical destruction or a written declaration.
Limitations on testamentary freedom
Sarbah is of the view that the customary law does not permit any person to
bequeath to an outsider a greater portion of his property than is left for his
family. Bentsi-enchil urges the view by stating that a man cannot dispose of more
than half of his property to an outsider under a customary law will. It is not clear
whether the choice of words bequeath was intentional as it relate to only
movable property, for devise would be the appropriate word to refer to the

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 disposition of an interest in immovable property. It is however very probable that
he meant any form of testamentary disposition. There is also the problem of what
he meant by family as in this day, there is practically no fixed meaning of the
word. The terse definition given by Sarbah is that of a fanti family which consists
all persons lineally descended through females from one common ancestress. If
this is the group contemplated by Sarbah, then outside total strangers this may
constitute most members of the local community. Today, there appears to be no
restriction on testamentary freedom under customary law. A Ghanaian can
dispose of all his self-acquired property by the customary law will, if such method
of disposition is recognised by his customary law. Even if Sarbah was right, the
situation has changed and this is no longer good law. The limitation stated by him
is difficult to apply today as we do not know the ambit of the term family. If may
be that unlimited testamentary disposition would result in hardships to
dependents if no provision is made for them either in his will or his lifetime,
however it is suggested that in such case, the court should exercise its inherit
jurisdiction to make a provision for such dependents.
The most important critique of the traditional nuncupative will is to be found in
the writings of A.K. P. Kludze who maintains the non-applicability of the
nuncupative will to the Ewe. According to him, the making of Wills strictly
speaking is unknown to Ewe law. He therefore opens up an important debate
about the applicability of the nuncupative will across Ghana. The question that
emerges is whether a utility-based argument can be formulated for the use of
nuncupative wills among persons to whom it might otherwise not be applicable.
josia arye’s argument
Customary law will and donatio mortis causa contrasted
They are similar in the sense that in both cases, it is a gift in contemplation of
death and takes effect only on the death of the donor. Furthermore, both may be
oral.
Differences

Donatio mortis causa- it is a gift of amphibious Samansiw

nature, which is neither entirely inter vivos nor
testamentary. It is an act by whcich the doness is to

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have absolute title to the subject, not at once but if
the donor dies. It is a gift presented to take effect in
the future
It must be made in contemplation of death, though
it may not necessarily be in expectation of death.
The donor must be a person who is ill, such a person
about to undergo operation. If however, death is
imminent, the donatio mortis causa may fail because
it would be tantamount to making an informal will
outside the formalities prescribed by statute
There must be delivery to the donee or his agent of
the property which is the subject matter of the gift,
or else the donee of his agent must be given means
or part of the means of getting possession of the
property, such as the delivery of the keys to a house
or a car key
It is made by a person on his or her death bed,
and it presumably limited to death-bed
dispositions or dispositions made in an
emergency when there is anticipation of
death. There is no prior authority for this view
and it is contradictory to Sarbah’s statement
that a samansiw may be made by both a
person who is ill and one is in a perfect health
The delivery of possession immediately is not
necessary. To be more precise, there is no
right to possession of the property which is
the subject matter of the customary law
testamentary gift, unless the testator
eventually dies.

INTESTATE SUCCESSION
The Concept of Intestacy9 :
“Intestacy may be defined as the condition of dying without leaving a valid will or
directions as to the manner f disposition of one’s property. In legal usage it
applies specifically to dying without leaving testable property disposed of by will.
Two forms of intestacy are recognized : total intestacy and partial intestacy. A
deceased clearly dies totally intestate if he left no valid will to govern the
devolution of his estate. In that case, the law falls on the rules of intestacy to
determine the devolution of his estate. Individuals who may assume that they
have made a perfect will may well die partly testate and partly intestate.
Succession to their property falls into a penumbral area of the law called partial
intestacy. In such an event the terms of the will apply to those properties to
which he died testate and the rules of intestacy will regulate the distribution to
properties in respect of which he died intestate. Both processes are , in turn ,
9
N.A. Josiah –Aryeh “The Right to walk in another man’s shoes: The intestate succession Act in context” UGLJ Vol
XXVII 2014 pg. 202

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subject to any necessary statutory interventions operating for the time being.
The state of partial intestacy is subject to statutory rules on family provision and
such like legislative interventions. Total intestacy also occurs in the following
instances : (1) where the deceased was under 18 years of age and incapable of
making a will; (2) the deceased, being adult, deliberately chose not to make a will;
(3) the deceased lacked the requisite testamentary capacity to amek a will; and
(4) the deceased, having made a will revoked that will without making another.
Section 2(1) of PNDC L 111 provides that “ a person shall be deemed to have died
intestate under this Law if at the tiem of his death he had not made aw ill
disposing of his estate. Under section 2(2) “ any person who dies leaving a will
disposing of part of his estate shall be deemed to have died intestate under this
law in respect of that part of his estate which is not dispoed of in the will and
accordingly the provisions of this law shall apply to such part of his estate.”
Intestate succession is presently governed by the Intestate Succession Act, 1982.
In 1985, PNDCL 111 was enacted as amended in 1991 by the Intestate Succession
Amendment Law, 1991-Law 264.
The practice of intestate succession is governed by customary law. Under Act
111 , a certain proportion of the estate in certain circumstances is governed by
customary law. Law 111 was enacted because it was felt that the customary law
rules for the distribution of intestate estates were unfair and unjust in certain
situations especially to spouses, that is widows and widowers. In the case of
matrilineal societies to chidren.
The law in relation to intestates estates before law 111 was not uniform and so
the type of marriage of the deceased could affect the rules of intestate
succession. Particularly if the deceased was married under the marriage
ordinance or the marriage of Mohammedan ordinance, different rules applied. All
of these were considered problematic and that is why law 111 was enacted.

CUSTOMARY INTESTACY
TYPES OF FAMILY SYSTEMS

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The term ‘family’ is generally used within the context of the customary law to
embrace a large unit of persons who are related by consanguinity. There are two
main types –matrilineal and patrilineal
A family is said to be patrilineal if membership of the family is traced through the
male line and matrilineal when membership is traced through the female line.
These types have radically different rules applying to succession.
The following ethnic groups are matrilineal :
 The Akan (all of them with one or two exceptions)
 Lobi
 Tamp Lense
 Vangala/baga
 Ga Manshi
The following ethnic groups are patrilineal
 Ewe
 Ga-Ga Mashi
 Dagme
 Krobo
 Dagomba
 Guan
 Kyerepon
 Buem
 Akan elements in northern volta region
 All ethnic groups in the northern, upper east and upper west regions apart
from Lobi, tamp lense and vagala /baga
There is case law decisions holding that the Ga mashi were matrilineal. Some
of these cases were tried by the whites who used Akan principles. However,
Prof Kotey believes that they are patrilineal. There are some Akan elements in
the Ga Mashi and it can be seen in names like Amponsah…
Mixed Marriages
There are also mixed marriages which holds different issues. This is a situation
where man from a matrilineal community marries a woman from the

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 patrilineal community. Technically the children from such families are without
family. The customary law solution to this problem is that they are accepted
and assimilated and associated with the family type they relate most with
though they do not have full rights. The customary law which governs the
devolution of their estate would be the one to which they were most attached.
The next type is where the woman is from a matrilineal community and the
father is from a patrilineal community. Children from these types of marriages
can enjoy form both sides. If during their lifetime they were associated with a
particular family type, then it is that particular rules of succession that would
govern the devolution. Where there is no clear evidence of choice from the
way the person lived, then the devolution of his or her property would be
governed by both.
MATRILINEAL COMMUNITY-PRE LAW 111
The deceased’s property would devolve on his immediate matrilineal family
which comprises of his mother, uterine brothers and sisters and issues of such
sisters.
A spouse is not a member of the deceased’s family. Children of a deceased
male are not members of the family.

MAINTENANCE OF RESIDENCE OF CHILDREN

The father is under an obligation to support his children and house them during
his lifetime . Upon his death, this duty is assumed by a customary successor. The
courts have over the years tried to improve the situation of children and surviving
widows in matrilineal communities. This has been done by emphasizing this
obligation of the father to house and support his wife and children.This obligation
is placed on the customary successor of the deceased –Manu v Kumah. The
Supreme Court held that a successor under customary law was under an
enforceable legal obligation to maintain and educate the children of the deceased
even though they could nto lay claim to any specific portion of the intestate
estate.
The right of residence in a dwelling house built by his father on family land was
however said to be subject to the condition of good conduct, a qualification which
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in practice tends to undermine the full enjoyment of the right by surviving widows
and children. This was observed by Wiredu J in Amissah –Abadoo v Abadoo.
THE RIGHTS OF WIDOWS AND WIDOWERS
The widow or widower does not have any share of the property of a deceased
husband or wife. A spouse is not a member of a deceased matrilineal family. The
rules of customary law however imposed an obligation on the customary family
to provide for the widow or widows of the deceased. A surviving widow was also
accorded the right to reside in the house built by her deceased husband. In Re
Antubam, Abrebrese v Kaah, Amissah-Abadoo v Abadoo. It must be noted ,
however that the surviving widow’s right to maintenance differed from that of
the children in that it derived exclusively from the existence of the marriage.
PATRILINEAL COMMUNITY
The right to succeed property in this community is derived form membership of
the family through ones father. When the man dies intestate, it is his children
who inherit. Hausa v Hausa , Yawoga v Yawoga, Husunukpe v Dzegblor,
Sedorme v Dodor, Agboe v. Mang. A surviving spouse at customary law has no
specific share of the deceased’s property. Though a widow has a right of
residence in the house built by her husband.
Children as Successors.
Among the patrilineal communities, it is the children of the intestate estate who
succeeds as of right. Their respective shares are subject to the rules of that
patrilineal community. See hausa v Haruna,
The Role of the Customary Successor
At customary law, on the death intestate of a person, a customary successor is
appointed. This person is generally from the immediate family of the deceased.
By immediate family, in the case of matrilineal communities, the mother of the
deceased if alive, the uterine siblings of the deceased and the children of his
sisters. For patrilineal communities, the brothers of the deceased or the children
of the deceased and if there are males among the children , then it is more likely
that it is the male who will be appointed customary successor.

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The customary successor steps into the shoes of the decease. That is why Kludze
sometimes refers him as the ‘positional successor’. His role is to administer the
estate in accordance with customary law for the benefit of those entitled to enjoy
the estate.
It should be noted that, under matrilineal communities, the customary successor
is to administer, manage and control the estate of the deceased for the benefit of
the immediate family of which he is a member. The customary successor
therefore does not have an absolute interest to the entirety of the estate to the
exclusion of other members of the immediate family and definitely cannot
alienate the estate or any part thereof without the consent of the immediate
family.
In Manu v. Kuma, the Supreme Court held that a customary successor under
customary law was under an enforceable legal obligation to maintain and educate
the children of the deceased, even though no specific portion of the intestate
estate could be claimed by the children or any of them. The Supreme Court stated
in that case : “There is no doubt that by customary law a successor stands in the
shoes of his predecessor and assumes liability for his legal responsibilities within at
least the means of the estate inherited by him…We consider that the responsibility
of a successor to maintain and train the child of his predecessor is a legal one and
the right enduring therefrom to the child is different in its nature from a right to
succeed to a share in the estate of his deceased father…We say therefore that a
successor under customary law is under an enforceable obligation not only to
maintain but also to educate the children of his predecessor to the extent of the
property of the deceased which has come to his possession and his dealings
therefrom.” In the case of In Re Kofi Antubam (deceased) ; Quaicoe v Fosu &
Anor , it was further held that under Akam customary law the widows and
children of an intestate are entitled to be maintained by the head of family or
successor, by the payment of adequate allowance to the widows during their
widowhood and also the children until they are capable of maintaining
themselves, the court adding that such payments may be periodical or amount to
capitalized annuities.
Patrilineal communities usually appoint a brother as the successor or if the
deceased is a woman , a sister of the deceased or the eldest son or eldest
daughter if the deceased has adult children and their role is also to manage the

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estate. Hence in both matrilineal and patrilineal communities the customary
successor plays a critical role in ensuring fairness and equity in the distribution of
the estate and also to safeguard the rights of those entitled to benefit from the
estate.
PROBLEMS
1. Position of Spouses : Under both the matrilineal and patrilineal system of
inheritance under customary law, a spouse is not a member of the family and is
not entitled to inherit. Widows were given some rights of maintenance and
support if the estate could afford it.
2. Situation of Children in Matrilineal Communities : In matrilineal communities
because membership of the family is traced through the woman, the children of
the deceased male are not members of his family and therefore do not inherit.
Again children were given rights of living in , and maintenance support from a
deceased father’s estate.
Even under patrilineal systems where children inherit, generally, there was
discrimination against female children in favour of male children particularly
where the deceased was a man.
Even before Law 111, two attempts were made to prove the rules of intestate
succession in certain situations. Section 48 of the Marriage Ordinance and
section 10 of Marriage of Mohammedan Ordinance (All have been repealed).
The Marriage Ordinance provided that where the deceased is married under the
Ordinance, then upon his or her death, his intestate estate will be distributed
according to the laws of England ( The English Rules of Intestate Succession,
1948)as it existed at the time of the coming into effect of the marriage ordinance.
Under the English rules, it is the surviving spouse and children who inherit.
Section 10 of the Mohammedans Ordinance provided that where a person is
married under Islamic Law and the marriage is registered under the Ordinance,
then upon the death intestate of such a person, his estate will not devolve
according to customary law but will devolve according to Islamic law.
The section requirement under section 10-that the marriage must be registered
under the ordiancne meant that although the marriage was under Islamic law,
because the marriage had not been registered, section 10 wasn’t applicable.
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All these remained not satisfactory leading to the promulgation of Law 111.
INTESTATE SUCCESSION LAW, 1985 (PNDCL 111)
The rational is summarized in the memorandum to the law “This Act is aimed at
removing the anomalies in the present law relating to intestate succession and to
provide a uniform intestate succession law that will be applicable throughout the
country irrespective of the class of the intestate and the type of marriage
contracted by him or her.
The present law on intestate succession appears to be overtaken by changes in
the Ghanaian family system. The nuclear family (i.e. husband, wife and children) is
gaining an importance which is not reflected in the current laws of succession.
There is a tension between this smaller group and the traditional family unit as to
the appropriate line of devolution of property upon the death intestate of a
member of both units. At customary law, there is very little protection for a
surviving spouse. Neither spouse has a right to the property of the other. Children
in a matrilineal system have no more than a right to maintenance by their father’s
customary successor and a right to reside in their father’s house subject to good
behavior.
The growing importance of the nuclear family brings with its own logic moral
justice. Simply put, this argues that a surviving spouse be compensated for his or
her services to the deceased spouse; that a spouse is more likely to look after the
children on the death of the other partner than anybody else; and that
expectation of the spouses are probably best satisfied by giving the property of
one to the other on the former’s death. …”
Applicability
It applies to any person who dies intestate, on or after the commencement of Law
111. Section 1(1). In re Sackey , Ansaba v Mbeah [1992] 1 GLR 214, section 21 of
Law 111.
Section 1 :
(3) On the commencement of this Law, the devolution of the estate of any
person who dies intestate on or after such commencement shall be

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 determined in accordance with the provisions of this Law subject to
section(2) of this section and the rules of private international law.
(4) This law shall not apply to any stool, skin or family property
Section 2-Intestacy and Partial Intestacy.
See section 18 and also section 2(1) of Act 111. Section 2(1) provides that a
person dies intestate under the Act if at the time of death that person has not
made a will disposing off the estate of that person.
Section 18 , the interpretation section provides that ‘will’ includes not only a will
under the Wills Act but samansew and any other form of will recognized at
customary law.
Section 2(2) deals with partial intestacy. Where the will does not dispose off the
entirety of the estate, the portion not disposed off, is deemed to have been left
intestate and will be apportioned in accordance with law 111.
Section 21: Transitional Provisions: (1) “ Notwithstanding the provisions of section
1 of this Law or any other enactment the provisions of this Law shall be applicable
in the settlement of any claim or adjudication pending before the Court or a Chief
or Head of Family under customary law at the commencement of this Law in
respect of the administration or distribution of the estate of an intestate who
died before such commencement, and for the purposes of this section the
provisions of the Customary Marriage and Divorce (Registration ) Law, 1985
(PNDCL 112) and the Administration of Estates Act, 1961 (Act 63) as amended by
the Administration of Estates (Amendment) Law, 1985 (PNDCL 113) shall be
deemed to be applicable to such claim or adjudication.”
ADADE V ADADE & ANOTHER : The deceased died in April 1984. The defendants,
a brother and a sister of the deceased, applied for letters of administration in
respect of the estate. The plaintiff-widow caveated, claiming that one of the
properties listed as belonging to the deceased, a house at Nhyiaso, Kumasi had
been gifted to her and her children by the deceased. The court, on 30 July 1984 ,
granted joint letters of administration to the parties without prejudice to the
plaintiff’s right to bring an action for the determination of the issue of whether or
not the house had been gifted to the plaintiff and her children. Subsequently,
additional properties of the deceased were discovered and applications were

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made to the court for their distribution so that by 5 August 1985, the court still
had to make an order on the distribution of a cheque covering an amount being
the refund of the balance of the provided fund of the deceased. On 11 November
1985, the plaintiff took out a writ at the High Court claiming that by the operation
of the Intestate Succession Law, 1985 (PNCL 111) , she and her children were
entitled to the disputed house. The trial judge dismissed the plaintiff’s action on
the grounds, inter alia , that (i) the marriage between the plaintiff and the
deceased had not been registered under the Customary Marriage and Divorce
(Registration) Law, 1985 (PNDCL 112) ; and (ii) the intestate died before PNDCL
111 came into force in 1985 and since the law had no retrospective effect, the
plaintiff could not make her claim under the provisions of that law. On appeal to
the court of appeal
Held: That it was not necessary for a customary marriage to be registered before
a spouse benefit under the Intestate Succession Law, 1985, 1985 (PNDCL 111).
The registration of the customary marriage, in the absence of fraud , would serve
as conclusive evidence of the marriage while a non-registered customary
marriage depending on the circumstances , would have to be proved. In
situations, as in the instant case, where it was not possible to register the
marriage because one of the spouses died before the coming into force of PNDCL
111, it would be absurd to deprive a spouse of his or her rights under the law
simply because such marriage had not been registered. In any case, section 15 of
the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) did
not make registration of a customary marriage a condition precedent to the
exercise of a right under PNDCL 111.
Secondly, the Intestate Succession Law, 1985 (PNDCL 111) did not operate
retrospectively, if “by retrospectively” it was meant to affect claims which had
existed some years back. What the Law provided under section 21(1) was a
transitional provision to affect claims or adjudication no such matters of
administration and distribution of the estate of an intestate who died before the
commencement of the Law but which had not been concluded. The effect of that
provision might affect claims existing immediately before the coming into force of
the Law , but that by itself did not make the Law retrospective. Accordingly, for
the Law to operate retrospectively, the following conditions must exist : (i) the
person died intestate; (ii) he died before the commencement of the Law; (iii) at

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the commencement of the Law there was pending a claim or adjudication
before the court, a chief, or head of family; and (i) the matter pending must
affect the administration or distribution of the estate of the intestate. In the
instant case, it was obvious that as at 14 June 1985 , when PNDCL 111 came into
force, the administration and distribution of the estate, particularly the house in
dispute, had not been completed since the court had to determine the ownership
before distribution. Thus, on the facts, there was a claim before the court at the
time of commencement of the Law. Consequently, the provisions of PNDCL 111
were applicable to the estate of the deceased.
Per Ampiah JA (as he then was) “In so far as this law is concerned, it has not been
made to operate retrospectively-if “by retrospectively” it is meant to affect claims
which had existed some years back. What this Law provides under section 21(1) is
only a transitional provision to affect claims or adjudication on such matters of
administration and distribution of an estate of an intestate who die before the
commencement of the Law, “pending before the court or a chief or head of family
under customary law at the time when this Law came into force.” The effect of this
provision may affect claims existing immediately before the coming into force of
the Law , but this by itself does not make the Law retrospective. To so operate,
certain conditions precedent must exist, namely:
(I)that the person died intestate; (ii) that he died before the commencement of the
Law; (iii) that at the time the Law commenced, there was pending a claim or
adjudication before the court or the chief or head of family under customary law;
and (iv) the matter pending must affect the administration and distribution of the
estate of the intestate.”
In Re Sackey (Dec’d): Ansaba v. Mbeah [1992] 2 GLR 271
FACTS : The deceased died intestate on 11 March 1981 survive by a wife and
about ten children. After his death, letters of administration was granted to his
customary successor, a member of his family and the second plaintiff on 9
November 1981 to administer his estate. In 1985, the defendants detected some
errors on the letters of administration and caused the Registrar of the court to
rectify same. Subsequently , the plaintiffs issued a writ against the defendants
claiming inter alia an order that the distribution of the estate of the deceased was
caught by the Intestate Succession Law, 1985 (PNDCL 111) since even though

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PNDCL 111 came into force four years after the death of the intestate, his estate
had not been distributed.
ISSUES:
 Whether PNDCL 111 affect intestate estates which were not distributed at
the time the law came into force
 Whether the estate of the deceased was distributed at the time PNDCL 111
came into force
HELD: Section 21(1) of the Intestate Succession Law, 1985 (PNDCL 111) made the
provisions of the Law applicable to the distribution of the estates of intestates
who had died before the commencement of the Law only where a claim or
adjudication relating to the administration or distribution of the estate was
pending before the court, or a chief or the head of family under customary law at
the time the Law came into force. The fact that the estate had not been
distributed did not however mean that a claim or adjudication was pending
because a “claim” meant that somebody interested in the estate had instituted an
action before a court, a chief or the head of family; an “action” included a
complaint, issue of a writ or summons or call for arbitration aimed at
administering or distributing the estate; and an “adjudication” meant that such
action was pending and a decision had not been taken on it. But it was clear on
the evidence that letters of administration had been granted to the defendants as
far back as 1981. Accordingly, as at 1985 there was no claim , action or
adjudication pending before any court in respect of the estate of the deceased.
The application by the defendants in 1985 for the correction of errors on the face
of the letters of administration did not mean that any action was pending. Since
when PNDCL 111 came into force the court had dealt completely with the
application for letters of administration of the state of the deceased intestate.
Per Benin J “ The ambit of this provision [Section 21(1)] is clearly circumscribed in
the sense that the claim or adjudicating relating to the administration or
distribution of the estate must have been pending at the time the Law came into
force. The fact that the estate had not been distributed does not mean that a
claim or adjudication was pending. By a “claim” it is to be understood in the sense
that somebody interested in the estate had instituted an action before a court, a
chief or the head of family. “Action” includes a complaint , issue of a writ or

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summons or call for arbitration aimed at administering or distributing the estate.
By “adjudication” is meant that such action was pending and a decision was yet to
be taken on it. It is clear that as at 1985 there was no claim , action or
adjudication pending before any court in respect of the estate of Amos Sackey.”
“…the application put in by the defendants to correct the errors apparent on the
face of the letters of administration issued to them did not mean that any claim or
adjudication in respect of the deceased’s estate was pending. The application for
letters of administration had been granted by the court and the registrar had
completed the administrative formalities by issuing the letters of administration to
the defendants. If later it was detected that there were apparent errors on the
face of the letters of administration due to the default of the court registrar it did
not mean any action was pending. In fact there was no need for the defendants to
have re-applied to the court to correct the errors. the application should have
gone to the registrar who inserted wrong names and added that it was with a will
annexed contrary to those whose application had been approved by the court
without a will annexed. When PNDCL 111 came into force the court had dealt
completely with the application for letters of administration.”
IN RE ARMAH; ARMAH VRS. ARMAH [1991] 1 GLR 140
FACTS : The deceased who was married to the defendant under the Marriage
Ordinance , Cap. 127 died intestate in 1980. In June 1986, the plaintiff , the son of
the deceased, applied for letter of administration in respect of the deceased’s
estate. The defendant, his lawful widow , resisted the application and caveated.
Following the failure of the parties to agree on who should receive the grant, the
plaintiff in compliance with the court’s order took out a writ of summons for the
determination of who was entitled to the grant. The defendant also caveated for
a grant in her favour or for joint grant. An issue which fell for determination was
whether Cap. 127 or the Intestate Succession Law, 1985 (PNDCL 111) was
applicable to the action since, even though the deceased had died in 1980, the
action was commenced in 1986, ie. after the promulgation of PNDCL 11.
Held : A strict, literal and grammatical interpretation of the words in section 21(2)
of the Intestate Succession Law, 1985 (PNDCL 111) making the provisions of that
law applicable in the settlement of any “claim or adjudication pending before the
Court…at the commencement of this Law” to mean only actions actually

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physically pending in the courts at the commencement of PNDCL 111 would lead
to an unjust and absurd situation. It would mean that where A died before the
commencement of PNDCL 111 but an action in respect of his estate was pending
to be determined by the court, then PNDCL 111 was the applicable law, but
though B also died before the passage of PNDCL 111 but he action in respect of
his estate was commenced after the commencement of the Law, as in the instant
case, then the Law should not be applied. The proper approach in interpreting the
section would be to apply the purposive approach by ascertaining what
inadequacy in the old law PNDCL 111 was intended to remedy. Sine it was clear
from the memorandum of PNDL 111 that the objet of section 21(2) was to give
expression to the concern of the courts which had constantly lamented their
impotence to remedy the customary law why they had often considered to be
unjust, the legislature would not in the circumstances limit their concern to only
cases physically pending before the courts. Accordingly, a liberal construction
would be offered for section 21(2) of PNDCL 111 and it would be interpreted to
include cases which were commenced after the promulgation of PNDCL 111 as
also pending before the courts, especially since it should be borne in mind that
at that time the old laws had been repealed.
Per Lutterodt J “How can action instituted before the coming into force of the new
Law and which but for the passage of this new Law would have been dealt with
under the old laws of succession enjoy the benefits and rights of the new law but
an action instituted subsequent to the passage of this new Law, and so whose trial
commences when this new Law is in operation cannot be determined on the basis
of this existing law? And therefore, I would, in interpreting this section, apply the
purposive approach. I would aks why the need for this new legislation. Was the old
law inadequate? If yes, what was this new Law intended to remedy ? In so doing, I
have looked at the memorandum for guidance. It is said that the object of this
section is to give expression to the concern of the courts which have constantly
lamented their impotence to remedy the customary law which they have often
considered to be “unjust”. I cannot imagine the law makers would limit their
concern to only case physically pending before the court. I would offer a liberal
construction to this section and interpret it to include cases which were
commenced after the promulgation of this Law which would also become pending
before our courts, for we should also bear in mind that at this time, the old laws

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had been repealed. With the interpretation, therefore, the law which is applicable
to the case would be PNDCL 111, s. 22(1)”

IN RE ARMAH (DED); ARMAH V ARMAH [1991] 2 GLR 53 , C A

The court of appeal upheld the decision of the trail high court judge(supra) and
held that “ the provisions of the Intestate Succession law, 1985 (PNDCL111) were
applicable to the distribution of the estate of the deceased because even though
he died before the commencement of the Law, the fact that the estate had not
been distributed before the Law commenced constituted a matter pending within
the terms of section 21(1). Furthermore, once the property of a deceased had not
been distributed among those entitled thereto then at least in the eyes of the
customary law, matters pertaining to the distribution of those properties
constituted a matter pending before the deceased’s head of family.”
DEVOLUTION OF INTESTATE’S ESTATES
The Household Chattels
Section 3 of Law 111 provides that the household chattels of a deceased intestate
shall devolve on the surviving spouse(s) and children absolutely as tenants in
common-in equal shares.
‘Household Chattels’ have been defined under section 18 to include : jewellery ,
clothes, furniture and furnishings , refrigerator, television, radio, any other
electrical and electronic appliances , kitchen and laundry equipment, simple
agricultural equipment, hunting equipment, books, motor vehicles, other than
vehicles used wholly for commercial purposes, and household livestock”
WHO IS A CHILD?
The Act does not distinguish between dependent children and adult children-see
section 18 for definition of child. “ child includes a natural child, a person
adopted under an enactment or under customary law relating to adoption and a
person recognized by the person in question as the child of that person or
recognized by law as the child of the person”

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IN RE ASANTE (DEC’D) : OWUSU VRS. ASANTE [1992] 1 GLR 214 : On the death
intestate of the deceased his widow whom he had married under Cap 127 and his
adult eldest son by another woman applied to the High Court for letters of
administration to administer his estate. In the supporting affidavit, it was deposed
that the deceased left behind seven children , six of whom were minors and
survived by a widow. The application was granted but before the letters of
administration could be sealed ,one Madam Mary Owusu (MO) entered a caveat
praying that as the mother of the two of the infant children, she should be joined
as a co-administratirx in order to adequately protect the interest of her children.
The application was opposed on the ground that MO had no locus standi and
therefore had no interest in the estate. Before ruling could be given, the
customary successor also applied to the court to be joined as co-administrator
and in his affidavit in support, he disclose that there were two more children of
the deceased. The high court granted both applications however an appeal by the
widow against the inclusion of MO was allowed by the court of appeal on the
grounds inter alia that the minor children of MO and the eldest son of the
deceased belonged to the same degree of priority of grant and since he had been
included in the grant the interest of that degree had been represented in the
administration and again, the joinder of MO who is a concubine of the deceased
with the widow of the deceased might militate against the smooth administration
of the estate. Mary Owusu further appealed to the supreme court contending
inter alia that since the widow lived outside the jurisdiction she (MO) was better
qualified to participate in the administration in order to protect the interest of
her two minor children.
Held: On who constitutes a child under Law 111 , the court held that section 18 of
the Intestate Succession Law, 1985 defined a “child” to include a “natural child.”
On the evidence therefore the deceased in his lifetime recognized the children of
the appellant as his children. Accordingly , each of them came within the
definition of “child” as provided in section 18 of PNDCL 111. Accordingly, in the
distribution of the assets of the estate , each of them would be entitled to an
equal share of the portion due to all the surviving children. The court however
declined to include Mary Owusu as co-administratrix since she did not fall within
the persons enjoying priority under the grant of letters of administration. The
order of priority was the surviving spouse, surviving children , surviving parents

155
and customary successor. The court concluded that the joinder of the appellant, a
concubine, as an adminstratrix had the potential of creating inconvenience and
causing confusion which could delay the administration of the estates and besides
there was nothing on the record to show that the eldest son of the decease could
not protect the interest of his half-brothers and sisters. Therefore, the eldest son
was qualified to protect the interest of his half siblings.
In re Koranteng-Addow (Dec’d): Koranteng-Addow vrs. Koranteng [1995-96] 1
GLR 252
FACTS : The appellant, a natural child of the deceased, applied for letters of
administration to administer his estate. The respondent, a paternal brother of the
deceased and the customary successor from his maternal family both caveated .
The respondent claimed inter alia that contrary to the appellant’s claim that he
was the only surviving child, the deceased had other three children all women. In
support of his claim , he tendered the obituary notices, tributes read by one of
the children at the funeral records of family meetings. The respondent testified
further , that one of the other three children had provided the coffin and drinks
for the funeral. The appellant however disputed those claims and in support of
his case, tendered in evidence an affidavit by another alleged child from the three
in an action she had brought against the deceased in his lifetime in a dispute over
her later mother’s estate and in which she had deposed that the deceased was
her stepfather. The trial judge however accepted the case of the respondent and
therefore held that the three women were also surviving children of the
deceased. On appeal by the appellant from the decision , the Court of appeal
found inter alia that none of the women had used the deceased name as her
surname and none of the women had also put in a claim for a share of the
deceased’s estate.
Held : The central question for any judge faced with the issue whether or not a
person was a child within the meaning and intendment of section 18 of the
Intestate Succession Law, 1985 (PNDCL 111) was whether the deceased
recognized the person as his child. Accordingly, any non-natural child claiming any
portion of the estate of a deceased should prove that the deceased in his lifetime
recognized the claimant as his child. Once there was a positive proof that the
deceased recognized the claimant as a child, he or she qualified as a beneficiary.

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Although one would naturally expect such recognition to be reciprocal in that the
child should also recognize the deceased as his father, in which case reciprocity
would become one of the essential means of proof, the absence of it was no
conclusive proof that the claimant was not so recognized. Accordingly, the exhibit
tendered by the appellant was no conclusive proof that the children(two out of
the three) were not children of the deceased. The court however allowed the
appeal reasoning on the evidence that though all the intended beneficiaries were
adult women fully aware of the death of the deceased, none of them put in an
application for a share in the estate in her own capacity and no affidavit came
from any of them in proof of that fact. Furthermore the assertion that one of the
three children, (IB) was a natural child of the deceased was never proved. The
court also reasoned that since obituary notices, tributes and family meetings
records were not depositions, they could not be preferred to the more cogent
evidence in exhibit X.
Per Wood JA “All the three intended beneficiaries are adult women fully aware of
the death of the man the family claims recognized them as his children. I find it
difficult to believe if they were so recognized, that they themselves did not know
of such recognition, to the extent that none of them put in an application for a
share in the estate in her own capacity. We have not been told of any proceedings
pending and brought by them for a determination of whether or not they qualify
as children. Even more pertinent, no affidavit came from any of them in proof of
this fact. If they were minors perhaps their conduct would be understandable. I am
not saying that the absence of any such affidavit is conclusive proof that they were
not so recognized. The point I wish to emphasize is that the court must not
overlook this important factor in evaluating the evidence.”
The single house:
Where the deceased died possessed of a single house, section 4(1)(a) provides
that the single house goes to the surviving spouse and children as tenants in
common.
It should be noted that there is no restriction on the location or value of the
house or that it should be the matrimonial property. The simple language is that if
the deceased had only one house it devolves to the surviving spouse and children
in equal shares as tenants in common.

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Child under the Act is a child of the deceased, a natural born child or a child
adopted under statute or under customary law relating to adoption and a person
recognized by the deceased as his child or recognized by law as the child of the
deceased.
The fact that the parents were not married are irrelevant to the question of the
person being the child of the deceased.
Several Houses:
Where the deceased had more than one house, then , the surviving spouse (s)
and children have the right to choose one house in equal shares and shall hold
the house as tenants in common. -4(1)(b)Where there is disagreement as to
which of the houses devolve to the surviving spouse or child or both of them,
then the high court can make a determination upon application by the
administrator of estates-4(2)
4 (a) “Where the estate includes only one house the surviving spouse or child or
both of them , as the case may be, shall be entitled to that house and where it
devolves to both spouse and child, they shall hold it as tenants-in-common;
(b) where the estate includes more than one house, the surviving spouse or child
or both of them, as the case may be, shall determine which of those houses shall
devolve to such spouse or child or both of them and where it devolves to both
spouse and child they shall hold such house as tenants –in-common :
provided that where there is disagreement as to which of the houses shall
devolve to the surviving spouse or child or to both of them, as the case may be,
the surviving spouse or child or both of them shall have the exclusive right to
choose any one of those houses; except that if for any reason the surviving
spouse or child or both of them are unwilling or unable to make such choice the
High Court shall , upon application made to it by the administrator of the estate,
determine which of those houses shall devolve to the surving spouse or child or
both of them.
The Act is silent on the factors to be taken into account by the high court in
making its determination.

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By taken the house in equal shares and as tenants in common, then there will be a
problem of sharing and also it implies each has an inheritable or alienable right in
the property.
The estate under this section devolves only to the surviving spouse and children.
See In Re Asante ; Owusu v Asante
The Residue(movables and immovable) :
The residue means what is left for the estate after the household chattels and one
house has been taken by the surviving spouse and children.
Section 18 defines residue as that part of the intestate estate that does not
devolve according to sections 3 and 4.
Section 5 deals with the devolution of the residue when the deceased is survived
by a spouse and children :
3/16 goes to the surving spouse
9/16 goes to child or children
1/8 to surviving parent or parents
1/8 in accordance with customary law.
Theoretically this means that the rest of the estate would be divided into sixteen
parts, with three parts devolving on the surviving spouse, nine to the surviving
children, two to the parents and two in accordance with the rules of customary
law.
In the absence of parents, the 1/8 th earmarked to parents will devolve in
accordance with customary law hence making the portion that will devolve in
accordance with customary law ¼.
In each of these devolutions, the persons hold them in equal shares as tenants in
common save the portion devolving in accordance with customary law-see
section 14.
For Kludze, these divisions pose serious problems since for instance , the residue
could be house(s) and may lead to fragmentation of the estate and doesn’t allow
the court to decide.

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CASES
FACTS:

Must read articles :

The Right To Walk In Another Man’s Shoes : The Intestate Succession Act In
Context”
Family provision in Ghana’s Law of Succession-Josiah Aryee
“In spite of a growing complexity in the statutory framework supporting family
provision in Ghana, the concept requires substantial development in depth to
cover and adequately provide for a number of potential claimants. The bare
statutory provisions fail to recognize the entirety and variety of the needs of a
widow spectrum of possible claimants, including step-children , disabled and,
unmarried children as well as the competing moral claims between spouses and
other beneficiaries. Further complicating factors include the claims of cohabitants,
conduct of the spouses, the rights of adopted children , of former spouses not
married, as well as judicially separated couples and their entitlement to apply for
provisions form each other’s estates.
Of the above, the rights of cohabitants probably pose the greatest challenge.
Consenting adults may live together as de factor spouses for a considerable
number of years but without any semblance of a marriage ceremony. Usually, the
customary law recognizes and validates such relationships, particularly where the
union is blessed with children. In other instances, especially where such illegal
unions are perceived as threatening the stability of an established marriage, the
rights of the unmarried cohabitants and the validity of their association as a legal
relationship are not so clear –cut”
 The obligation to provide maintenance in Ghana
Where the deceased is survived by a spouse(s) but no child –section 6

160
 (3) Where the intestate is survived by a spouse and not by a child the residue
of the estate shall devolve in the following manner :
d. one-half to the surviving spouse;
e. one-fourth to the surviving parent
f. one fourth in accordance with customary law
(4) Where there is no surviving parent one-half of the residue of the estate
shall devolve in accordance with customary law.
No surviving spouse(s) but child or children –section 7: 3/4th to the surviving
spouse or children, 1/8th to the surviving parent(s) and 1/8th in accordance with
customary law. In the absence of a surviving parent, the 1/8 th earmarked for the
parents is allocated to customary law making that of customary law 1/4th.
Survived by a parent but no child and no spouse-section 8: Because there is no
surviving spouse and no children, this is a reference to the entire estate and not
just the residue. Here 3/4th of the entire estate to the parent(s) and 1/4th in
accordance with customary law.
Grandchildren: No specific provision for grandchildren. However, by section 16, a
dependent grandchild at the time of the death of the deceased, whose parent has
pre-deceased the intestate shall succeed to the portion his parent would have
been entitled to if he or she had survived the intestate. The act gives no guidance
on what constitutes ‘dependent’.
“Where a child of the intestate who has predeceased the intestate is survived by a
child who is the grandchild of the intestate , the grandchild is entitled if that child
is dependent on the intestate at the time of death, to the whole or a portion of the
estate which would otherwise have devolved to the parent if that child had not
predeceased the intestate.”
Devolution of residue where customary law is inapplicable-9
“Where customary law is not applicable to the devolution of that part of the
residue which by virtue of section 5, 6, 7, or 8, shall devolve in accordance with
customary law, that part of the residue shall devolve in equal shares to those
beneficiaries otherwise entitled to share the residue under the relevant
provisions of the Act”
Customary law provisions for succession by family –section 10
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Where the rules of succession under customary law applicable to a portion of the
estate provide that the family of the intestate is entitled to a share in the estate
(d) that family is the family to which the intestate belonged for the purposes of
succession in accordance with the customary law of the community of
which the intestate was a member;
(e) in the case of an intestate who, being a member of two customary law
communities belonged to two families for the purposes of succession, that
family shall be the two families
(f) in the case of an intestate who is not a member of a family, that family is
the family with which the intestate was identified at the time of death or ,
failing that , to the families of the parents of the intestate or failing that to
the Republic
Intestate survived by neither spouse, parent nor child-section 11
(4) Where the intestate is not survived by a spouse, a child or a parent the
estate shall devolve in accordance with customary law
(5) Where a customary law is not applicable to the devolution of the estate of
an intestate who is not survived by a spouse , a child or a parent in the
circumstances referred to in subsection (1) the estate shall devolve to the
Republic
(6) Where the estate of an intestate devolves to the Republic under subsection
(20 , and an application is made to the High Court, and the Court is satisfied
that a person who was maintained by the intestate or with whom the
intestate was closely identified , should be maintained out of the estate or
that a portion of the estate or the whole of the estate should devolve to
that person, the Court may make an order for the maintenance of that
person out of the estate or that a portion of the estate or the whole estate
devolves to that person.
Small Estates –section 12 : Where the total value of the residue does not exceed
ten million old cedis (GH1000) ( under Act 111 it was fifty thousand cedis and it
was changed to ten million by the children’s Act), the residue shall devolve on the
surviving spouse or children or both.
Where there is no surviving spouse or child, but there is a surviving parent, the
residue devolves on the surviving parent

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It should be noted however that the Minister of Justice may by a legislative
instrument vary the value stipulated under section 12-Section 13
Sharing of portion of residue by two or more persons-section 14
Subject to the rules of customary law relating to a member’s interest in
communal property, where two or more persons are entitled to share a portion of
an estate under this Act they shall divide it among themselves in equal shares.
Presumption against survivorship
Where spouses die in circumstances
(c) in which it appears that their deaths were simultaneous, or
(d) rendering it uncertain which of them survived the other, the older shall, for
the purposes of this Act, be presumed to have predeceased the younger.
Under Section 16(A), ejection of spouses is prohibited.
(3) A person shall not, before the distribution of the estate of a deceased
person whether testate or intestate, eject a surviving spouse or child from
the matrimonial home
(e) where the matrimonial home is the self-acquired property of the
deceased;
(f) where the matrimonial home is rented property, unless the ejection is
pursuant to a Court order;
(g) where the matrimonial home is the family house of the deceased, unless
a period of six months has expired from the date of the death of the
deceased; or
(h) where the matrimonial home is public property unless a period of three
months has expired from the date of the death of the deceased.
(4) For the purpose of subsection (1) , “matrimonial house” means
(c) the house or premises occupied by the deceased and the surviving
spouse, or the deceased and a surviving child or all of them, at the time
of the death of the deceased, or
(d) any other self-acquired house of the deceased occupied by the surviving
spouse or child or both at the time of the death of the deceased
Interference or Intermeddling with the estate –section 17: Interference or
intermeddling with the estate before distribution is a criminal offence punishable
163
with a fine not exceeding 250 penalty units or a term of imprisonment not
exceeding one year and the court or tribunal shall make any orders necessary for
the reinstatement of or reimbursement of the person who has been ejected or
victim of the crime.

OTHER CASES
GRACE FYNN VRS STEPHEN FYNN & ANOR
FACTS :

MENSAH VRS MENSAH [2012] 1 SCGLR 391

FACTS: The couple were first married under customary law. The customary
marriage was converted into a monogamous marriage under the marriage
Ordinance, Cap 127 (1951 Rev.). At the time of the marriage, the husband was a
government employee as a junior accounts clerk at the Ministries, Accra. Before
then, the wife used to trade in rice, sugar and groundnuts at the Krobo Odumase
market. after the marriage, the wife moved to Accra with the Husband and lived
in a rented premises at La. They had no property at the time. At the weekends,
the couple would go to Krobo Odumase to farm and plant cassava. After
processing the harvested cassava into gari, the wife realized Gh 60 which she used
as capital for trading. She traded in palm oil and used to travel to various towns
and villages to buy palm oil. The wife also traded in cooking oil, rice and sugar
from their house at La. The husband also sold some of these items to his co-
workers in the office. the Wife at a point in time, took some money from her
father to invest in their business. AS the business expanded, they acquired a shop
at the Ministries which the Wife managed, whilst the husband continued working
at his government office at the Ministries. The couple extended their trading
business to to other products including clothing and electrical appliances like
fridges, television sets and deep freezer. The husband arranged for those items
form their suppliers on credit. They also got their customers from the husband’s
co-workers, mostly on credit basis. The parties acquired substantial properties.

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About a decade after the celebration ofh te marriage, cracks started appearing in
the marriage and things turned sour. Eventually, the husband left the matrimonial
home and moved into the couples’ jointly acquired residential property at
Adenta, Accra. After diligent efforts at reconciliation had failed, the wife
petitioned for divorce. The trial High Court found that the parties had jointly
acquired substantial assets during the subsistence of the marriage including
residential properties at Kasoa, Krobo Odumase, Adenta and Spintex Road, Accra.
The trial court ordered the distribution of the marital properties on equal basis.
the Husband’s appeal to the Court of Appeal was dismissed whereupon the
husband further appealed to the supreme court.
ISSUE : Whether the equality principle used by the trial and appellate courts in
the distribution of the marital property acquired during the marriage following
the dissolution of the marriage between the parties is sustainable under the
current state of the laws in Ghana based on the available evidence on record.”
HELD : That it was quite clear that Article 22(3)(a) and (b) of the 1992
Constitution had espoused the principle of having equal access to property jointly
acquired during marriage and hat of equitable distribution of such property upon
divorce. The court will therefore integrate the principle of “Jurisprudence of
Equality” which had been defined as the application for international human
rights treaties and laws to national and local domestic cases alleging
discrimination and violence against women into our rules of interpretation , such
that meaning would be given to the contents of the 1992 Constitution , especially
on the devolution of property to spouses after divorce. Consequently, it was
unconstitutional for the courts in Ghana to discriminate against women in
particular , whenever issues pertaining to distribution of property acquired during
marriage came up during divorce. There should in all appropriate cases be
sharing of property on equality basis.
The Supreme Court speaking through Dotse JSc held further that common sense
and principle of general fundamental human rights would require that a person
who was married to another, and had performed various household chores for
the other partner like keeping the home, washing and keeping dirty laundry
generally clean, cooking and taking care of the partner’s catering needs as well as
those of visitors , raising up of the children in a congenial atmosphere and

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generally supervising the home such that the other partner had a free hand to
engage in economic activities, must not be discriminated against in the
distribution of properties acquired during the marriage when the marriage was
dissolved. The reason was that the acquisition of the properties had been
facilitated by the massive assistance that the one spouse had derive from the
other. In the instant case, the wife’s contribution even as a housewife in
performing the household chores, maintaining the house and creating a congenial
atmosphere for the husband to create the economic empire he had built, were
enough to earn the wife an equal share in the marital properties upon divorce.
And, on the evidence the wife had made a substantial contribution to the
acquisition of the matrimonial properties and was therefore entitled to equal
share.
Per Dotse JSC “…even if this court had held that the wife had not made any
substantial contributions to the acquisition of the matrimonial properties , it
would still have come to the same conclusion that the wife is entitled to an equal
share in the properties so acquired during the subsistence of the marriage. This is
because this court recognizes the valuable contributions made by her in the
marriage like the performance of household chores referred to (supra), and the
maintenance of a congenial domestic environment for the husband to operate and
acquire properties. Besides the constitutional provisions in article 2(3) of the 1992
Constitution, must be construed to achieve the desired results which the framers
of the Constitution intended…”

“…the time has indeed, come for the integration of this principle of “Jurisprudence
of Equality” into our rules of interpretation such that meaning would be given to
the contents of the 1992 Constitution especially on the devolution of property to
spouses after divorce. Using this principle as a guide we are of the view that it is
unconstitutional for the courts in Ghana, to discriminate against women in
particular , whenever issus pertaining to distribution of property acquired during
marriage come up during divorce proceedings. There should in all appropriate
cases, be sharing of property on equality basis.
..We are therefore of the considered view that the time has come for this court to
institutionalize the principle of equality in the sharing of marital property by

166
spouses , after divorce, of all properites acqrueid during the subsistence of a
marriage in appropriate cases. This is based on the provisions in articles 22(3) and
33(5) of the 1992 Constitution, the principle of “Jurisprudence of Equality” and the
need to follow, apply and improve our previous decisions in Mensah v Mensah and
Boafo v Boafo (supra). The wife should be treated as an equal partner even after
divorce in the devolution of the properties. The wife must not be bruised by the
conduct of the husband and made to be in a worse situation than she ousl hae
been had the divorce not been granted . The tendency to consider women
(spouses) in particular as appendages to the marriage relationship, used and
dumped at will by their male spouses must cease. Divorce as Lord Denning
stated long ago, should not be considered as a stigma.”

QUARTSON VRS. QUARTSON [2012] 2 SGLR 1077

FACTS : The parties married for twenty five years and had three children. They
acquired various properties including the matrimonial homee which was built
solely with monies sent by the husband at a time when he lived outside the
country. The husband lived and worked from outside Ghana for many year and so
when he remitted the sums for the construction of the matrimonial home, the
wife solely and diligently supervised the construction of same from the
foundation level until it was completely and satisfactorily built and also took on
the responsibility of taking care of the children. A company , Pious Trading and
Construction Co. LTd was also incorporated with the husband holding 60 per cent
shares and the wife holding 40 per cent. The petitioner , the wife petitioned for
divorce at the High Court on the grounds of unreasonable behavior of her
husband and sought inter alia the following reliefs: the husband be ordered to
vacate the matrimonial home; the wife be paid a lump sum of GH50,000 as
settlement of property rights; she be given all her director’s fees and allowances
as a director of Pious Trading and Construction Company Ltd; and that her 40 per
cent shares in the company be quantified and paid to her as part of the
settlement of property rights.
The trial judge dissolved the marriage but dismisse the relief that the husband be
ordered to vacate the house. The corut also awarded the wife a lum sum of
GH350,000 as settlement of property rights in addition to one double plot of land

167
a vehicle , ie a Nissan Pathfinder. However, the wife was ordered to vacate the
matrimonial home within thirty days. An appeal to the court of appeal was
dismissed save for enhancement of the settlement award form GH35,000 to
GH50,000. The court of Appeal also held that not having made substantial
contribution to the acquisition of the matrimonial home, the wife had no interest
in it. The wife further appealed to the Supreme Court.
Before the Supreme Court, the husband submitted inter alia that in the absence
of legislative guidelines on property rights of spouses , pursuant to the mandatory
provision in Article 22(2) of the 1992 Constitution, the petitioner wife would have
no share in the matrimonial home. It was also contended that if the framerws of
the constitution had intended the judiciary to take up the responsibility by way of
judicial law-making, they would have expressly stated so.
HELD : The Supreme court held that it was well-established that where a spouse
had made substantial financial contribution to the acquisition of the preoprty
during marriage, pursuant to an agreement or inferred intention by the couple,
the property acurqreuid should be jointly owned. What would however amount
to substantial contribution by a spouse will depend on the facts of each particular
case and that the court of appeal erred in refusing to recognize the wife’s
contribution to the construction of the matrimonial home; and in holding that the
absence of legislation by partliament pursuant to article 22(2) of the Constitution,
domestic services rendered by a wife such as cooking , could not amount to a
contribution by a spouse in a property solely acquired through the financial
resources. The court concluded therefore that the petitioner wife was entitle to a
share of the value of the matrimonial home and that the wife’s inability to
adequately quantify her assistance towards the construction of the matrimonial
home, would not in itself bar her from an equitable sharing of the matrimonial
property. The court noted that the equities of this particular case however did not
call for a half and half sharing of the matrimonial home. However, the wife’s
interest in the matrimonial home had been adequately covered and reflected in
the award of the double plot of land to her by the trial court as affirmed by the
Court of Appeal.
The court refused the relief sought for an order for the payment of director’s fees
and dividends because a company had a distinct legal personality form its
shareholders and directors and unless certain exceptions could be shown , its veil

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of incorporation will not be lifted. Therefore, the property person against whom
an action for director’s fees and dividends should be brought would be the
respondent’s company, Pious Trading and Construction Co Ltd and not the
respondent himself.
Per Ansah JSC : “…Parliament has till this day, not enacted legislation to regulate
the distribution of jointly – acquired property of spouses upon divorce , as article
22(2) OF THE 1992 Constitution mandates. …due to Parliament’s inaction, the
courts have, over the years , carve out the principle of substantial contribution as
the litmus test for the determining whether or not a case can be made for joint
ownership of property. The courts have therefore held in several cases that
substantial financial contribution of a spouse to the acquisition of property during
the subsistence f the marriage, would entitle that spouse to a share in the
property…
It follows that where a spouse makes substantial financial contribution to the
acquisition pursuant to an agreement or inferred intention by the couple hat the
property acquired should be owned jointly, the court will hold the property to be
jointly owned. It is also clear form judicial precedent that what amounts to
substantial contribution by a spouse is usually gleaned from the facts of each case.
Where the court makes an inference that there was an intention or agreement
that the contribution made would entitle each spouse to a share of the property,
the court would not deny one spouse ownership of the property over the other.
The courts were then left to decide, in the exercise of their discretion and on the
facts of the case, in which proportion the joint property would be shared. This
would be without prejudice to he fact that there might not have been any hard
evidence of the exact amount of financial contribution made or in which
mathematic proportions the contributions were made. After all, the institution of
marriage is not one to which the ordinary incidents of commerce would apply.”
“It is the view of this court that the principle laid down in Quartey v Martey
cannot be allowed to stand in this twnty-first century. Times have changed and
society has evolved since 1959. The world is waking up to the fact that women
play an all important role in the development of society and this role cannot be
whittled away by the inability or difficulty to quantify in financial terms their
contribution in the creation of a healthy stable family environment.”

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“In viewo f the changing times, it would defy common sense for this court to
attempt to wait for Parliament to awaken form its slumber and pass a law
regulating the sharing of joint property. As socity evolves, a country’s democratic
development and the realization of the rights of the citizenry cannot be stunted by
the inaction of Parliament. We do not think that this corut is usurping the role of
Parliament, especially in cases where the inaction of Parliament results in the
denial of justice and delays in the realization fo constitutional rights. As the
appellant [petitioner] put it in ground (v) of her grounds of appeal, the appellant
should not be made to bear the brunt of Parliament’s failure to pass a law to
regulate the distribution of joint matrimonial property.]
“It is our opinion that on the strength of the decision in Mensah v Mensah, the
wife would be entitled on a a share of the value of the matrimonial home. The
evidence is abundantly clear that sh performed her supervisory tasks over the
building ofh te hosue satisfactorily. Even though she was a housewife, she single –
handedly took charge of the household when her husband , the respondent, was
incarcerated for years in Liverpool. We would agree with the reasoning in Mensah
v Mensah that the inability to adequately quantify the appellant’s wifely
assistance towards the construction and upkeep of the matrimonial home, does
not in itself bar her from an equitable sharing of the matrimonial property”
PROBLEMS OF LAW 111
16.Distribution of the Estate –Polygamy and Its Consequences 10 : One of the
most fundamental problems affecting the practical implementation of Law
111 arises from the fact that the drafters of the Law appear to have given
little or no consideration to the issue of polygamy and its consequences in
defining the “nuclear family”. Since customary marriage is potentially
polygamous, a man who dies intestate may leave behind more than one
lawful wife and several sets of children from different mothers whose
interests invariably conflict, but who are nevertheless expected to succeed
to property as co-owners. Even where there is only one surviving spouse it
is possible that there may be children born to the man outside a
monogamous marriage or children of the man or woman from a previous
marriage terminated by death or divorce. In such situations, the

10
Christine Dowuona –Hammond : WOMEN AND INHERITANCE IN GHANA

170
 assumption that the surviving spouse of the intestate would be the best
person to look after the children may not hold true. A lot of litigation has
been generated by situations of this nature as can be seen in the case of IN
THE MATTER OF THE ESTAET OF MAJOR KWAME ASANTE (DECEASED)
which involved a dispute between the surviving widow and some of the
children of the deceased, the customary family and a concubine of the
deceased and her children over the grant of Letters of Administration. The
main issue which the court had to determine was whether the concubine
was entitled to be joined as co-administratrix in order to ensure that the
interests of her children in the estate were protected. The High Court held
that the concubine was so entitled, a decision which was reversed on
appeal to the Court of Appeal. Upon further appeal to the Supreme Court,
it was held that evne though the children of the concubine had equal rights
of succession with the surviving widow and her children, their rights were
sufficiently represented by the widow and the eldest child of the deceased
and therefore the concubine was not entitled to be joined as co-
adminstratrix. This case illustrates the complexity of situations which could
arise upon the application of the seemingly simply provisions of the Law
and the potential for conflict and litigation between interested parties.
Further, the issue of requiring several wives or one widow and different
sets of children to choose one out of several of the intestate’s houses also
tends to crate intractable problems. The extreme variations in the interests
of the parties or factions are about to generate a lot of ill-will and litigation.
Where there is more than one lawful wife or one lawful wife and different
sets of children, who have to hold the property as tenants in common, they
may finally be compelled to agree to rent out the house or sell it altogether
and share the proceeds , thereby depriving the widow who lived here of
her matrimonial home.
17.Interests of the widow: 11 The Law primarily seeks to reverse the situation
at customary law under which the widow had no rights of inheritance in the
husband’s estate by prescribing hat specific portions of the estate should
devolve on the widow and children. This approach , however does not
seem to achieve the declared purpose, and in some cases only results in
litigation and the ultimate sale of the inherited , leaving the widow in an
11
ibid

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unattractive position. The implementation of the Law has revealed that in
most cases, it fails to ensure adequate provision for the surviving widow
and dependent children of the intestate before the distribution of the rest
of the estate among the customary family and parents of the intestate.
In certain situations, the application of the provisions of the Law does not
secure for the widow sufficient means of support for herself and the
children of the deceased as intended. In polygamous situations where there
is more than one lawful wife, all of them being entitled to one house and
the household chattels as co-owenrs as required by the Law, this invariably
results in protracted conflicts which in most cases can only be resolved by
selling the house and the chattels and sharing the proceeds. In polygamous
situations, where the deceased left more than one house which could be
conveniently allocated among the widows and their children separately, ti
is difficult to see why the law reqruies all of the widwos and children of the
deceased to inherit only one of the houses and hold it as co-owners ,
creating a situation which is patently unworkable in practice.
Even in cases where there is only one suriving spouse but different sets of
children, the mode of distribution adopted by the Law tends to produce
undesirable results. The statutory provisions which reqruies that the wife
be treated equally as all the children of the deceased could lead to grave
injustice to the surviving widow. Wehre the man died leaving one house, all
the natural and adopted children of the deceased would be entitled to
share equally the house and household chattels with eth spouse. Conflicts
inevitably arise where there are different sets of children with conflicting
interests, each seeking to protect his interest in the estate. Such conflicts
tend to get even more bitter where there are children born to the man
outside a monogamous marriage in some cases unknown to the lawful wife
until the man’s death. The widow is placed in an even worse situation since
she may have made significant contribution to the acquisition of the
properties in question, yet her share would have to be re-apportioned
among her children and other children of the intestate.
The outcome of the implementation of the provisions of the Law is even
more absurd where the deceased left behind more than one house, and the
widow and all the children of the deceased (including those not born to the
widow who may have been residing elsewhere) are nevertheless required
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to select only one of htem and hold it as tenants in common. The case of
COLEMAN V AGYARE illustrates this defect in the mode of distribution
adopted by the Law and the need for more flexibility in the approach of the
Law in order to improve the lot of surviving widow. Until his death, the
deceased lived with the widow and their five children in one of his houses,
while the other two children lived elsewhere. The deceased left behind
three houses. One of the children of the deceased applied to the court ofr
a declaration that she was entitled to one of the houses absolutely because
it had been gifted to her by her deceased father in his lifetime. In addition,
she asked for a declaration that she was entitled to a share of the estate.
The trial judge dismissed the claim of the appellant and, on finding that the
estate had not yet been distributed, ordered, inter alia , that the widow
was entitled to chose one of the houses and enjoy absolutely, while the
children of the deceased held the other houses as tenants in common. On
Appeal to the Court of Appeal, it was held that the trial judge misapplied
PNDCL 111. The Court of Appeal stated that PNDCL 11 does not confer and
right on any of the children or a widow left behind by an intestate, to
choose any of the properties for himself or herself alone. The Court of
Appeal applied strictly the provision in section 4(b) of PNDCL 111, stating
that the law makes no such allowance as referred to by the trial judge in
favour of the widow.
Since the term “child” covers all the natural and adopted children of the
intestate , it was ordered that all the seven children of the intestate should
hold one of the three houses with the surviving widow while the rest of the
estate was distributed according to the provisions of the Law as stated. the
merit ni the approach adopted by the lower court as Dowouna suggests is
quite apparent even though the Law does not endorse it. The practiacal
problems created by the strict implemtation of the Law in such
circumstances and the conseuqences for the sruvinig widow are obvious
and it is difficult to understand why an alternative mode of distribution
could not be adopted by the courts to improve the lot of the surviving
widow. The law does not seem to allow for any flexibility in the mode of
distribution even where the estate is substantial and could be conveniently
allocated among the different groups so as to eliminate potential conflicts
and preserve the estate.
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18.Definition of Child : The definition of “child” under the law has also given
rise to a number of difficulites in implementation. It has been observed that
the Law seems to assume that all the children of the deceased are equally
dependent on him and thus makes no distinction between dependent
children and those who are self-supporting adults, who in no way are
dependent on the intestate. Even though it is clear that the Law set out to
provide protection for widows and young children of the intestate who are
dependent on him, its prescriptions do not allow flexibility in the
distribution of the estate to ensure that the surviving widow and
dependent children are taken care of before all others. A situation, is
therefore ,created where a self-supporting adult child of the intestate could
claim equally as a child who is a minor is fully dependent on the Intestate.
Also under the provisions, such self-supporting adult children are entitled
to a larger portion of the estate than a dependent aging surviving parent.
Even though all the children of the deceased should be entitled to a share
in the estate , greater equity would be achieved if the Law made sufficient
provisions, first of all, for the widow and dependent children before the
devolution of the rest of the estate to others.
19.Role of Customary Family : In its bid to protect the interest of the widow
and children of the intestate, Law 111 inevitably diminished the significance
of the role of the customary family, a fact which is reflected in the
provisions on the distribution of the estate. Prior to the enactment of
PNDCL 111, the customary family performed a central role in the life of an
individual, especially among rural people and the urban poor. It was
common for the customary family to sponsor the education of deprived
members of the family and provide security and support for such members.
The customary family also usually contributed towards the funeral of its
members, including those who were destitute . With the introduction of
Law 111, which gives priority to the nuclear family to the detriment of the
customary family, ti has beomce clear that the customary family now has
less reason to make massive investments in the lvies of its members
especially the needy ones, ince upon their death most of their estate goes
to their nuclear family. It would seem, therefore, that the protection
provided to the deceased at the cost of sacrificing almost entirely , the
crucial role performed by the customary family. It is essential that some
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 strategy be devised to ensure the continued support of the customary
family even after the enactment of Law 111 , especially among rural people
and the urban poor.
20.Administrative and Enforcement Obstacles : It is significant to note also
that attempts to enforce one’s rights under the Law may be seriously
hampered by fiancnial consdierations. An application to the courts for the
enforcement of the provisions of Law 111 in one’s favour, in most cases,
involves the services of professionals, including lawyers, valuers,
accountants etc. In some cases, a significant portion of the estate would
have to be sold for payment of fees for such services which are
indispensable if the application is to be successfully pursued.
Legal aid would be a useful option , especially in the case of small estates,
and wehre the claimaing spouse and children do not have adequate means.
Excessive funeral expenses also tend to whittle away the estate of a
deceased, elaving the beneficiaries very little.
21.FRAGMENTATION OF THE ESTATE : Eventhough the law had as one of its
objectives the prevention of fragmentation of the intestate estate, the
application of its provisions, in some cases, inevitably leads to
fragmentation of the estate. The specific proprotions of the residue
allocated to the various beneficiaries under the Law inevitably result in the
fragmentation of the estate especially where there is more than one
spouse and different sets of children. In case wehre there is one lawful
fiwfe nad other children born outside the monogamous marriage, the
lawful wife may find that what was to go to her and children would have to
be re-appotined among her children and other children of the man, some
of whome she may have never heard until the death of her husband. More
often than not, different wives and different sets of children have
conflicting interests, making it impossible for them to hold and retain the
property as co-owners. In practice, therefore, the parties are compelled to
convert the property into cash and share the proceeds instead of retaining
it.
In some cases, determining the various proportinos of the estate which
should devolve on particular beneficiairs is almost impossible without
converting the property into cash. Wehre the residue consists of oen
composite property such as a hosue or a farm, ti is almost impossible to
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 determein or allocate specific propritinos as required by the Law without
converting the property to cash, and thereby reducing the economic value
of the property.
Further, where the intestate is a member of two customary families, the
proportion which has to devolve in accordance with customary law would
have to be split up requiring that the one eight portion be further divided
into two. Where the intestate is survived by two paretns living apart or
divorced, the portion allocated to them would have to be split up requiring
that the one eight portion be further divided into two. Where the intestate
is survived by two paretns living apart or divorced, the portion allocated to
them would have to be dived into two leading to the further fragmentation
of the estate.
22.IGNORANCE OF THE LAW: As a result of the high rate of illiteracy,
especially among rural people and the urban poor, a lot of women who
were itneded to benefit form the protection afforded by Law 111 remain
unaware of the existence fo the Law or its effect on their rights of
succession upon the death of their spouse.
23.ADMINISTRATION OF ESTATES UNDER PNDCL 111 : Upon the death
intestate of a person, the beneficiaries of the estate are required to applyto
the courts for the grant of letters of administration before the estate can be
administered. Under the Administration of Estates Act, 191, (Act 63)
persons with interests in the estate have to be represented when such an
application is made for the letters of administration. Traditionaly the courts
have considered the family of the deceased as the competent body that is
authorized by customary law to appoint a person to take charge and
control of the property of the intestate. With the introduction of the
Intestate Succession Law, which severely limits the beneficial interest or
share of the customary family in the estate of the intestate, the customary
family ahs been less and less inclined to cooperate fully with the nuclear
family of the deceased resulting in delays in the selection of a successor
and the application for letters of administration for the speedy
administration of the estate.
24.For Mensa-Bonsu, “Many of the problems inherent in this Law are a result
of the fact that there are some underlying assumptions of the law which
have been proved incorrect. One of these is that the customary family no
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 longer serve any purpose at all during the lfie or upon the death of a
person. Another is that all children of deceased persons are infants and
therefore, more deserving of protection than widow(er)s. Still yet others
are : that all these references to application to the courts do not involve
expenditure; that the spouse would always be the natural parent of these
children; and that everybody would have some property worth inheriting.”
12

25.Mensa –Bonus argues that the assumption relating to the children has
proved to be incorrect because it is not every child who is an infant and
dependent on the deceased. The result of the effort to protect ‘children’
therefore is that even adult children of the deceased, earning decent
incomes, are entitled to more of a deceased parent’s estate than an aging
or aged dpendent spouse. Clearly, from the Memorandum, the legislator
was concerned with the ‘plight of widows and children’. That in itself is
suggestive of the notion that infant children and widows were the ones the
law set out to protect. However, the formulation is such that adult and
infant children are treated alike. She concedes that there are strong
considerations of justice for so doing since a person’s age does not change
the status of ‘child’ vis-à-vis one’s parents. However, the question as she
poses is whether the need to protect the interest of adult children is the
same as for infant children. If not then whey the formulation not reflective
of this difference?
26.On the assumption of the surviving spouse always beign the natural parent
of the children, mensa-bonsu argues that this is wrong for various reasons :
- The law itself envisaged the possibility of a deceased man having more
than one lawful spouse, and yet operated as if all valid marriages were
monogamous.
- In a society where extramarital relations of males are not frowned upon,
there are several children who have been born outside the matrimonial
home, and yet the implications of this appears to have been ignored
- Some children are also the product of a previous marriage of the
deceased which was terminated either by divorce or death and would
thus not be the natural children of a surviving spouse.

12
Mensa-Bonsu : THE INTESTATE SUCCESSION LAW OF GHANA : PRACTICAL PROBLEMS IN APPLICATION

177
 Therefore she says “ To assume therefore that every surviving spouse
would be a natural parent of the children, is to turn one’s back on the
realities of our Ghanaian situation. Indeed the facts of Coleman v
Shang , should have served as a reminder of the multiplicity of interests
that could be created even by serial monogamy. This assumption has
therefore led to a complication of the underlying equation which was
envisaged by the Law as “family versus spouse and children”.
27.Another problem of Law 111 is the problem of the ratio division. What is
3/16 of the residue of an estate? Assuming that the residue consists only of
one other immovable property , how does one assess 3/16 , or 9/16 or 1/8
of that property? Thus the only logical solution to this problem may be that
they would have to dispose of the property and divide the proceeds
according ot the formula stated in PNDCL 111. How much each party may
get would depend on how much the property itself was worth and how
many the parties are. Here again the problem of polygamous marriages
rears its head. If the spouse is entitled to 3/1 of the residue, the deceased
contracted nine marriages 13, how would the nine spouses , if they all
survived the deceased, split this fraction in order for each to get
something?
Apart from this , it could be that the residue comprises some profitable
business, and if there are major disagreements, the business may be sold
off and the people who were actually targeted by PNDCL 111 to be the core
beneficiaries may actually lose out in the end.
28.Again, under PNDCL 111, provision for the education of a minor child is
palced in the residue of the estate, in section 5. This is a problem because
what if the estate of the deceased is such that after het household chattels
and the house have been taken, what remains is not enough to cater for
the education of the minor? Also, while a minor is generally considered to
be a person of less than eighteen years 14, it is trite knowledge that given
the peculiar circumstances in Ghana, a person between eighteen and
twenty – four years may not be able to support himself /herself through
whatever level of education training he /she may be in. The law therefore
places a burden on the person, because it is very possible for the
13
see for example Bamgbose v Daniel [1955] AC 107
14
Section 1 of the Children’s Act, 1998 (Act 560)

178
 administrator of the estate to declare that on turning eighteen , the estate
would no longer cater for his/her educational training as it was only bound
to do so till he /she attained that age. The nineteen year old, while not a
minor, may be placed in very difficult situation , and even if he /she may
seek some redress from the courts, that will still be at some cost.
29.Lastly, the law is silent on property jointly acquired by the spouses in the
lifetime of the deceased.15 Though this may not appear to some to be a
problem because of nemo dat quod non habet, and therefore there can be
no distribution of what was not the property of the deceased, it appears
there could be a problem particularly where there are other children
outside of the marriage. Per section 3, and 4, they will hold the house,
together with the surviving spouse, as tenants in common. The question
may again be asked : what if the house was jointly acquired by the
spouses? Why should the surviving spouse hold equal, indeterminate
interests with the children, including adopted children, and any other
recognized by the deceased as such? It appears here that the surviving
spouse’s legitimate half of the house is subsumed into the general property
and there is no distinction, which could give him/her a larger interest in the
house in question. Again, what if the house was acquired by the deceased,
but other properties were joint acquisitions? Will the surviving spouse’s
interest be automatically distinguished before the rest falls into the residue
of the estate, or will he /she have to incur extra legal costs for his/ her joint
interest to be recognized before the distribution of the residue of the
estate is done according to sections 5, 6 or 7?
30.Check Dr. Arye’s argument in relation to cohabitants

THE INTESTATE SUCCESSION BILL

Rationale :
The Intestate Succession Bill has been introduced to Parliament, and it
seeks to address the problems identified supra.
HOW THE BILL DEALS WITH THE PROBLEMS OUTLINED SUPRA
 In the first place, the problem of polygamous marriages has been treated
somewhat by the Bill. It recognizes not only multiple spouses, but also
cohabitees where the people cohabited and held themselves out in public
15
This view is from Maame Abena Mensa-Bonsu

179
 as man and wife. In clause 6, there is provision for the distribution of the
residue of an intestate who had more than one spouse or also cohabited
with another person where they held themselves out as man and wife. This
is an improvement in the existing law, for PNDCL 111 appears to ignore the
fact that there are many people involved in polygamous situations. In that
same clause, the portion of the estate has been enlarged for multiple
spouses to share, that is, from 3/16 to fifty per cent, thereby giving a
greater portion of the residue of the estate to the surviving spouses.
 The Bill also recognizes the possibility that the surviving spouse has no issue
, but the deceased had children outside the marriage. In the memorandum
to the Bill, it states that such situations, which were not envisioned by
PNDCL 111 has often led to acrimony. Thus to prevent such situations, the
Bill proposes in clause 15, to give specific portions of the estate to the
spouse and children. It is submitted that as this clause does not speak of
residue, but only says the estate, it appears that neither the provision for
the household chattels in clause 3, choice of house in clause 4 applies here,
and therefore the distribution of the entire estate including the household
chattels and house(s) are all part of this distribution method. This then
eliminates the situations where the spouse has to share property with
children born of either a previous marriage/ connection, or adultery.
 The problem of division of an estate into fractions appears to be improved
with the change suggested by the Intestate Succession Bill, where the
property is spoken of in terms of percentages. For example, instead of
surviving spouse being entitled to 3/16 of the residue of the estate which is
quite difficult to even imagine, in the Bill, he /she would be entitled to
thirty –five per cent, or fifty per cent where there are multiple spouses. This
makes the distribution appear much simpler matter than under the existing
law where one calculates in fractions before distributing the estate.
 Further, the Bill, in clause 12 proposes to deal with the problem of the
education of the children of the deceased noted in section 5 of PNDCL 111.
In the Bill, the education of the children is dealt with before the
distribution of the estate, to prevent the fore-mentioned situation where
what remains after the house and chattels have been removed is not
sufficient to provide for the educational training needs of the children. The
Bill then appears to put the educational needs as a more important factor
180
 to be considered in disposing of the assets of an intestate than the existing
law does.
 The Bill also foresees that there could be instances where some of the
children of the deceased are not dependents at all. In fact, it is possible that
some of the children are even wealthier than the deceased intestate parent
and therefore on the balance of needs, should have a lesser interest in the
parent’s property than those who are actually dependent children.
The Bill defines a dependent child in clause 12 (3) as either one who
depends on the intestate for the payment of education fees and provision
of other necessaries, or one who is incapacitated and depends on the
intestate. This is a major improvement because the existing law purports to
treat all the children equally to ensure fairness, without taking into
consideration that in some instances, this equal treatment may actually
wreak unfairness to some of the children.
 Lastly, where a spouse jointly owned property with the deceased, other
than the matrimonial home, the Bill gives to that spouse seventy –five per
cent ownership, that is, the fifty per cent already belonging to the spouse
by virtue of the joint acquisition , plus twenty-five per cent of the interest
that had belonged to the deceased spouse. This seems to be an additional
security for such a surviving spouse such that he / she gets a larger portion
of such properties, and eliminates the potential disagreements et cetera
that may arise under the existing law which does not recognize this
possibility at all.-clause 10 defeats rights of survivorship tho
 look also at clause 8 dealing with the matrimonial home : how do you
reconcile the decisions in Mensah v Mensah & quartosn and quartson where
under under the bill they demand contribution+-the act defines contribution
and you will realise that the contribution explained is same as that provided
for under the cases ( the section is not really necessary
 for kludze the matrimonial house should be given to the spouse for life oto
avoid the conflict which arises

PROBLEMS IN THE BILL

 The Bill has not been able to deal thoroughly with the problem that
polygamous marriages pose to the house, and household chattels because
there is still the provision that the spouse or child or both are entitled to
181
 the household property of the intestate. Unfortunately for multiple
spouses, the definition part of the Bill defines only spouse, but does not say
that the word “spouse” should include “spouses”. Does this mean then that
only one spouse is entitled to the household chattels with the children? Or
is the court to apply a purposive approach, despite the definition provided,
in order to cover for the other spouses, where there is more than one?
Again, the multiple spouses may still have to share one house , even where
there is more than one house in the estate, because clause 4 only gives the
choice of one house to the surviving spouse where there is more than one
house. This does nothing to solve the issues that ay arise when there are
two or more spouses, and more than one house because even if the houses
are enough such that each spouse could actually have one, the Bill does not
allow them to do so, and it appears the acrimony it identifies as arising
between a spouse and children born outside the marriage may also exist
between different spouses who are forced to share one house.
 With regards to the problem of the marginalization of the extended family
in PNDCL 111, the Bill appears not just unable to solve it, but to even
worsen the situation. Under the Bill, there is an even greater portion of the
estate going to the surviving spouse and children than there is in the
existing law. As already mentioned, the extended family, in their own way
and in certain situations, may go, sometimes to great expense, to either
cater for the education of some of the members of the family or to
participate or perform rites/ rituals which cannot be dispensed with. Thus
allowing them to benefit in some ways from the estates of their intestate
family members is one way to foster further participation and support of
the family in the lives of its members. The Bill also operates , per its
memorandum , on what has already been argued is a misconception, that
the nuclear family is now the central type of family system there is in
Ghana, and thus appears by its provisions, to marginalize the extended
family even more than the existing law does.
 The Bill fails to deal with the problem of ratios and the possibility of the
property being disposed of in order to deal with the sharing issues.
Although it is mathematically simpler to calculate in percentages, this
appears to just be whitewashing the matter, as it still does not remove the
problems of splitting an estate into 50, 40, or 10 per cent. Thirdly, the
182
 marginalization of the extended family, as has been discussed above is even
more apparent in the Bill than it is under the existing law with bigger
portions of the estate going to the nuclear family.
 Another problem is the entitlement of the spouse(s)and children to a house
which under PNDCL 111 is guaranteed by section 4. In the Bill, this
guarantees taken away as now , where there is only one house the
surviving spouse and children would no longer be entitled to have it as they
are under the existing law. In fact, they are not entitled to any house at all,
where there is only one house.
Even where the surviving spouse contributed to the acquisition of the
house, he / she is entitled to more than fifty per cent of the entire estate,
and not more than fifty per cent of the house itself. It appears that where
there is only one house, that house is treated as part of the whole estate,
and not separated from it to be given to the spouse and/ or child as under
PNDCL 111, and thus the Bill robs the spouse and children of the guarantee
of a house which at least under the existing law, they are entitled to. The
only thing that the spouse is given, in clause 9 , is the option to buy out the
other beneficiaries, who are actually not mentioned in the Bill at all. Who
are the other beneficiaries ? Is the court to infer that this refers to the
children of the intestate who are not mentioned at all where there is only
one house in clause 4(1)?
Again , the surviving spouse has only a fifty per cent share in the
matrimonial home (clause 8) unless he /she contributed to the acquisition
of the matrimonial home then it is more than fifty per cetn, but we are not
who is to have the other fifty per cent. Does it fall into the residue of the
estate to be distributed? or again, should it be read purposively to mean
the children of the intestate ?
The problem noted above begs the question : what is more than 50% of an
estate? Is it 51% ? Is it 55%? Such an indefinite sum is definitely recipe for
trouble and a lot of haggling between the beneficiaries as there is no figure
as more than 50% and the Bill leaves no means of arriving at what exact
figure is meant by more than fifty percent of the estate.
 Thirdly, there is the provision for the educational training of a child. How
long is the education to continue? It is not indicated whether the cild
should be a minor, or whether it refers to anayhoen who was recognized by
183
 the deceased as his/her child regardless of the age of the person. This is the
problem because it may open the way for thirty-five year old whose parent
was helping with his education to claim a benefit under that provision.
Wehre there is more than one child undergoing some educational training ,
in addition to the 35 year old, it may mean that the children who are
unable to cater for themselves or their education have to share what
finances there are, with the much older person for whom it is certainly
easier to attain some kind of employment ot help with his education.
 Fourthly the definition of “spouses” in the Bill includes not just spouses
properly so-called, it also includes cohabitees where the man and woman
held themselves out to the public to be man and wife in accordance with
the Property Rights of Spouses Act (clause 29). This may create problems
where one section of the public may know oen person as the lawful
husband or wife, and another section of the public knows another one as
the lawful husband and wife. This for example could be the case where a
man marries one person , but has other women with whom he cohabits
regularly. The two or more women may not know each other at all, and
may not even know of the existence of the other. On the death of the
deceased, they suddenly become co-inheritors of the estate, sometimes in
equal proportions. The disagreements and the problems this could create
are anyone’s guess. In this same example, where the spouse has
contributed to the building up of the man and offered services to him for
about thirty years, and the other woman has been cohabiting with the man
for only five years, it seems patently unfair to ask them to share fifty per
cent of the estate equally.
 Lastly, the Bill is rather discriminatory in its language , and assumes that the
surviving spouse is a woman. This is seen particularly in clause 15, which
makes provision for where the intestate is survived by a sopuse and the
children of another woman. There is no mention of a spouse and the
children of another man. This appears to be based on the examples given
by the cases wehre most of the time , the disadvantaged person was a
widow or child, and also on the assumption in most Ghanaian communities
that the man is self-sufficient and thus less vulnerable, and also that the
man is not dependent on the woman. This would leave a gap in the law

184
 where a dependent man with the children of the deceased woman’s
connection with another man are not covered specifically by law
PROPOSALS FOR REFORM 16
 I think that it is abosolutely right that the education of the children of the
intestate be catered for out of the estate of the deceased before even the
house and chattels are shared, as the Bill proposes. However, there should
either be an age limit or an educational level limit so that an able-bodied
person, or at least one who is more capable of paying his way should not be
able to benefit unduly from the estate of the deceased parent. So that the
law would be hat the educational fees of the child should be provided for
up to the time the child finishes his /her first degree, or if he /she should
wish/ be better suited to a vocational training, the estate of the deceased
should cater for such training, and also help the child financially to establish
him / herself in her chosen trade. This would ensure that the person is
adequately provided for up to the time he / she can be reasonably
expected to be able to fend for him/herself first, before the adult child
studying for a doctorate degree is catered for as he / she is more likely to
be able to find work to help provide for whatever educational needs than
the younger one would
 I strongly disagree that cohabitees should be included in the definition of
spouses in any law relating to succession to properties, where the person
was already lawfully married under any system of marriage. The law is
complicated already, as it is, and conferring on people a status , which is
not legally recognized otherwise, is to further complicate matters. I
however think that the exception can be made where there is no lawful
spouse at all, in which case, there will not be too much wrangling over the
deceased’s property, between surviving spouses who are aggrieved at not
just having to share the property with the issue of the adulterous
connection, but also with a rival whose sole claim to the property is on the
basis of adultery. It adds insult to injury, particularly where the lawful
spouse was unaware of the existence of the said rival, only to discover that
awful fact, and also have to share what should legally have been for him/
her and children.

16
Maame Abena Mensa Bonsu

185
  Another proposal for reforming the law on intestate succession is that
there should be proper or ascertainable figures. The Bill proposes such
things as “more than fifty per cent” which, as has been argued above, is not
a proper figure or sum, and could lead to myriad difficulties when it is time
to decide what exactly is meant by “more than fifty per cent.”
 Where there is more than one spouse, and more than one house, such that
each may get a house, I propose that they should each get one, in order to
eliminate the problems stemming out of all the spouses being entitled to
only one house equally as appears to be the case under the existing law.
Another way to deal with this is to state that if each of the spouses lived in
a house owned by the deceased, then they should each be allowed to own
the house where they lived, and if not, then whoever was living in the
house owned by the deceased should take it with all the children, while
other spouses should be given equivalent compensation/ housing.
This may give support to the intetions of the deceased while he / she was
alive, as if he /she had wished to, he / she have installed whoever spouse
he /she preferred in the house owned. I do not think thtere is any reason
for a spouse who may have never seen the house before, to suddenly
become as entitled to it as the oen who has expended effort and perhaps
resoruces into keeping the house, and maintaining it.
 Finally, I propose that the provision for a parent should also include parent-
in-law if in the lifetime of the deceased he /she was helping to provide for
them. On the death of such a benefactor, the in – laws may be hopelessly
deprived of the benefits that they obtained while the intestate lived. This
problem would be brought into even sharper relief if the parent of the
intestate was actually quite wealthy and did not need the provision made
for them by the existing law, while the insolvent and dependent in –law
would be excluded from any benefits on the death of the deceased.
Including the in-laws would therefore help to also protect another group of
dependents.
 if you are talking about the fact that the act under 1(3) applies to self
acquired property then why do you capture joint property under the Act.
OWNERSHIP OF CORPSE AND ADMINISTRATION OF ESTATE
OWNERSHIP OF CORPSE
186
Every individual belongs to a nuclear and extended family (and perhaps
community). The law is that a corpse belongs to the extended family of the
deceased and as such it is the prerogative of the extended family to decide when,
how and where the deceased is to be laid in state and buried. NEEQUAYE VRS.
ASHALEY OKOE [1993-94) 1 GLR 538 Per Lutterodt J (as she then was).
However, the wishes and views of the nuclear family must be heard and
considered by the extended family during discussion on the funeral
arrangements. Neequaye v. Ashaley Okoe (supra). At customary law, death
determined the authority which a member of the family had over his persona and
same became vested in the extended family whose responsibility is to give a
befitting burial commensurate with the deceased’s social standing and the
standing of the extended family. Neequaye v. Ashaley Okoe (supra).
Facts : The deceased was the husband of the first plaintiff and the father of the
second plaintiff. After his death, a dispute arose between his nuclear family and
the wider family (extended family) over the venues for laying him in state for his
wake-keeping and burial. The plaintiffs brought an action against the defendant,
the head of the paternal family of the deceased, for, inter alia, a declaration that
(1) the deceased should be laid in state at his home at Kanda; and (2) the
deceased be buried at the Osu cemetery. In support of their claims, the plaintiffs
contended that by operation of law the persons responsible for the funeral and
burial arrangements of a deceased Ga person was his nuclear family, and , relying
on the Ga proverb moni fuo kpityelo le le enoo etokota meaning the one who
buries the leper is the person entitle to his sandals, they argued that (a) since at
customary law a corpse was regarded as property to be inherited by the persons
entitled to; and (b) under the Intestate Succession Law, 1985 (PNDCL 111) , the
spouse and children were entitled to the lion’s share of the estate, ie seventh –
eight, the paternal family represented by the defendant had no locus standi to
challenge them. They further contended that the venue for the burial should be
the Osu cemetery because the deceased had in his lifetime paid for a grave to be
reserved for him there. The court however found on the evidence that the
deceased had not paid for a grave at the Osu cemetery.
HELD Per Lutterodt J:

187
1. On the authorities, under customary law, death finally determined the
authority which a member of a family had over his person and control and
authority over the corpse vested absolutely in the wider family who were
responsible for giving the deceased a funeral not only befitting the status
he attained in life but one compatible to the social standing of the family in
the community and members of the family were obliged to contribute to it.
Accordingly, in the instant case, since the children were part of the family
of their deceased father they were entitled to take part in the discussion on
the funeral arrangements of their father. The widow however had no role
to play in the arrangements.
2. Under customary law, a corpse did not form part of the self – acquired
property of a deceased person, and it was therefore not property capable
of being inherited under customary law. Furthermore, since the Intestate
Succession Law, 1985 (PNDCL 111) was specifically enacted to give a
surviving spouse and children the lion’s share in the self-acquired property
of the deceased under PNDCL 111. Accordingly, in the instant case , the
plaintiffs could not be entitled to a portion of the corpse of the deceased
under PNDCL 111 such as would entitle them to appoint his place of burial
or the place where the deceased had to be laid in state.
“Even though at law, both statutory and customary , the wife and children
have no inherent right to decide on the place of burial or where a deceased
husband and father must be laid in state, since customary law does what is
reasonable, their wishes and views must be heard and considered by the family
during the discussions on the funeral arrangements.”
“…the wife and children are not the persons entitled to collect the body of a
Ga Mashie man from the mortuary. They are also not the persons entitled to
name the place of wake-keeping nor place of burial”
OWNERSHIP OF CORPSE IN OTHER PARTS OF GHANA (BASED ON EMPIRICAL
STUDY BY ACLP)
NANDOM
Where a woman dies, her body belongs to her family (if married her husband’s
family and if not married her father’s family)…

188
 WHERE THE DECEASED GIVES WRITTEN INSTRUCTIONS ON THE
DISPOSITIONS OF HIS BODY IN THE EVENT OF DEATH
Technically, since the corpse belongs to the family a written direction by a
member has no binding effect on the family.
Any such direction in a Will / or other testamentary paper or writing is void
because the law does not recognize any property in a dead body. Such wishes
are therefore not binding on the family but may be honoured purely out of
respect and courtesy to the deceased.
LICENSE OF MINISTER TO EXAMINE CORPSE
This is regulated by the Anatomy Act, 1965 (Act 280).
Section 1 –Licence for examination
(1) The Minister may grant a licence authorizing the carrying out, in
accordance with this Act, of the matters specified in subsection (2).
(2) A licence referred to in subsection (1) shall authorize a licensee( the head of
any medical school or institution, any teacher and medical practicioner
employed in such a school or institution, and any student working under
the supervision of any such person) , in relation to the body of a deceased
individual , to
(a) receive that body in a medical school or institution.
(b) keep or possess that body in a medical school or institution
(c) examine that body in a medical school or institution,
(d) dissect that body in a medical school or institution, or
(e) carry out any other matter specified in the licence which the Minister is
of opinion is in the interest of medical science.
(3) A person who is not a licensee shall not carry out any of the matters
referred to in subsection (2)
DONATION OF BODY PARTS AFTER DEATH
Section 3 –Directions applicable after death
(1) Where an individual in writing during the life of that individual or by word
of mouth, in the presence of at least two witnesses during the illness of

189
 which that individual died, directs that a licensee shall carry out in relation
to the body of that individual after death a matter specified in subsection
(2) of section 1, and before the burial or cremation of the body the
direction is made known to the executor or any other person having lawful
possession of the body , then the executor or that other person shall permit
the licensee to carry out that matter.
(2) Subsection (1) does not apply where the surviving husband or wife, or in
the absence of the husband or wife, a known relative of the deceased
individual who falls within the prescribed class of relatives of that individual
is opposed to that matter being carried out.
REVOCATION OF LICENSE
The Head of a Medical School or institution may by acting under section 9(1) of
Act 280 cause to be detained in whole or in part of the body of the deceased’s
person if he is satisfied that the retention is in the interests of medical science,
and the competent authority has consented to the retention.
CORONER’S INQUEST
Governed by the Coroners Act, 1960 (Act 18)
Section 1-Coroners
(1) The District Magistrate is a corner for the area of jurisdiction of the District
Court to which the Magistrate is appointed.
(2) Where a Coroner is unable through illness or any other reasonable cause to
perform the functions of a coroner a Justice of the High Court may appoint
a person to act instead of the coroner, generally or in regard to a specified
function or for a particular inquiry
Under section 5 of Act 18, the Coroner is mandated to hold as soon as practicable
an enquiry under the act concerning the death of a person when he has
reasonable cause to suspect that that person has died
(a) a violent or any other unnatural death, or
(b) a death of which the cause is unknown, or
(c) while detained in a prison, lock-up, psychiatric hospital or public institution
other than a hospital, or

190
 (d) in any other place or circumstances as, in the opinion of the coroner, to
make the holding of an inquiry in accordance with this Act necessary or
desirable
Rep v. District Magistrate Court Grade 1, Korle Gonno , Ex Parte
Ampomah [1992-93] 1 GBR 196
5(2) The coroner may, except in a case where that person has died while detained
in a prison or lock-up, dispense with the holding of an inquiry
(a) if as a result of an examination under section 7, the coroner is satisfied
that the death was due to natural cause; or
(b) if the coroner is satisfied
(i) as to the cause of death, whether with or without an examination,
(ii) that the death was due to mere accident or mischance or to
chronic alcoholism, or occurred without lack of reasonable care
on the part of a person while the deceased was under an
anesthetic or was undergoing a surgical operation, and
(iii) that a public benefit is not likely to result from an inquiry.
(3) Despite subsections (1) and (2), a corner shall hold an inquiry under this
Act, as to the death of a person in a case in which the coroner is informed
that, in the opinion of the AG , it is expedient that an inquiry should be
held.
CORONER’S DISCRETION
It is the coroner who decides whether to hold an inquest or dispense with it. Ex
parte Ampomah establishes that under Act 18, it is only the coroner who, upon
the existence of certain circumstances, decides to hold an inquest or not
CORONER BOUND TO HOLD AN INQUEST
The High court may in certain circumstances order the coroner to conduct an
inquest, or the AG or the person in charge of a hospital informs the coroner that it
is expedient that an inquest be held, the Coroner is bound to hold an inquest, and
the coroner has no discretion. In Ex parte Ampomah it was held that where a
person dies in a hospital or clinic, a report should be made to the coroner only
where the death was unnatural. See also 2(3) of Act 18.

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FACTS: The deceased who was a hypertensive and diabetic patient died on
admission at the hospital. The pathologist conducted a post-mortem examination
including a partial examination of the brain tissue and found that his death was
due to a hypertensive heart disease. Subsequently a brother of the deceased,
suspecting foul play, caused a second post-mortem examination to be conducted
by FD, a consultant forensic pathologist , who also found that the deceased
suffered a hypertensive heart disease and yet conclude tht the immediate cause
of death was undetermined. His examination did not include the brain tissue
which had been removed after the examination by the pathologist and flushed
away to prevent stench. This led to the institution of a coroner’s inquest in the
District Court Grade 1, Accra by the relieving magistrate. The reports were
submitted to the coroner who ruled that an inquest should be held. After hearing
the brother of the deceased, the coroner called upon the widow to give evidence.
Her counsel objected but was overruled and she was compelled to give evidence.
Thereafter her counsel applied to the High Court for an order of certiorari to
quash the proceedings before the coroner and sought in addition an order of
prohibition to prevent father hearing of the inquest. The ground for the
application was that the cause of death of deceased was known and the coroner
had no jurisdiction under the Coroners Act to hold the inquiry. The High court
judge considered the affidavits filed in the case and the two post-mortem reports
and called the pathologist to clarify his report. He conclude that the cause of
death was known and that the corner had no jurisdiction to conduct an inquest.
He therefore granted the orders of certiorari and prohibition.
On appeal by the respondent the Court of Appeal allowed the appeal and set
aside the order of the High Court on the grounds, inter alia, that the applicant did
not file a copy of the coroner’s report sought to be quashed. The appellant
appealed to the Supreme contending that (a) the coroner had no mandate under
Act 18 to commence an inquest and had acted without jurisdiction ;(b) the
inquest was wrongly solicited by the deceased’s brother since the discretion to
hold an inquest was the coroner’s to be exercised upon certain pre-conditions; (c)
the Court of Appeal wrongfully interfered with the exercise of the discretion of
the High Court judge to grant the application for certiorari and prohibition. The
respondent argued inter alia that the coroner had exercised a discretionary power
that was not reviewable.

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Held :
1. Under section 5(1) of the Coroners Act 1960, the coroner ought to hold as
soon as practicable an inquest on the death of a person where he had
reasonable cause to suspect that that person had died (a) a violent or other
unnatural death or (b) a death of which the cause was unknown, or (c)
while detained in a prison , lock-up, lunatic asylum or public institution
other than a hospital or (d) in such place or circumstances, as in the
opinion of the coroner , to make the holding of an inquiry necessary or
desirable. Under the provision if the coroner received information that
somebody had died in the district and he had reasonable cause or good
reason to suspect that the cause of death was unknown, he was bound by
law to hold an inquiry touching the death as soon as possible. “Reasonable
cause” within the context of the Coroners Act meant if the coroner, after
considering all the facts and circumstances of the case, in good faith
suspected that the person died in any of the circumstances n section 5(1).
2. When the police docket was made available to the coroner he could not
honestly say that the death was violent or unnatural. He could not also
sincerely say that the cause of death was unknown, because the
pathologist had made a finding that did not make an inquest necessary or
desirable. Accordingly the coroner had no reasonable cause to suspect any
of the statutory conditions laid down. Controversy had arisen over this case
simply because FD had stated the cause of death was “undetermined” but
it was clear that if his finding was confined to the body and not the brain,
there would have appeared to be no conflict between his report and that of
the pathologist who found the cause of death in the brain. If the coroner
had examined the docket carefully, he would have concluded that an
inquest was not necessary.
Per Archer CJ “Coroners’ inquest are no pantomime shows, comic plays or
tragic operas to be listened to and watched by an audience but solemn and
mournful proceedings to determine how a human being came by his death. The
proceedings cause pain and sorrow to relatives and should not be held as
routine matters in all cases but only when necessary or desirable”

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3. Section 5 of the Act provided that if a coroner had reasonable cause to
suspect that the cause of death was unknown he “shall” hold an inquiry to
discover the cause of death. The use of the word “shall” implied a
mandatory duty and not the exercise of discretionary power. This must be
distinguished from the case where a tribunal was given a discretionary
power to decide certain matters as distinct from deciding preliminary
questions of fact which clothed it with jurisdiction to act at all. In this case,
the coroner could only assume jurisdiction upon certain conditions being
present, ie. he must have had reasonable cause to suspect that the cause of
death was unknown. When he made this finding in the affirmative then
only could he proceed to hold an inquiry under section 5 and in that case
the duty was mandatory and not discretionary. It was not correct therefore
to say that he had discretionary power not subject to review by the High
Court. The legal concept of discretion implied the power to make a choice
between the alternative courses of action. If only one course could lawfully
be taken the decision was not the exercise of a discretion but the
performance of a duty as the word shall in section 5 clearly indicated.
Consequently the coroner was not exercising a discretion and his finding
could be challenged and quashed if it led to a wrong assumption of
discretion.
Per Hayfron –Benjamin JSC “ when the pathologist said that he performed a
partial post-mortem what he really meant was that he performed an autopsy.
Autopsy was an examination of a dead body to learn the cause of death. A
post-mortem meant a “medical examination made after death in order to find
the cause of death”. Under section 7(1)(a) of the Coroners Act 1960 (Act 18) it
was not upon to any hospital or medical centre to conduct a post-mortem
without the authority of a coroner, except, perhaps in our medical schools
where such procedures on unclaimed cadavers might be resorted to for the
purpose of training, experiment and research. Clearly if anybody or doctor said
he performed a post-mortem on the deceased without the authority of a
coroner, such post-mortem report was self-servicing and therefore of no
evidential value”
“Under the Coroners Act if the death was not an unnatural death then there
was no need to report the death to the coroner nor was he required to find the

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 immediate cause of death. All that he was required to do under the law was to
find , not that the deceased was suffering form a disase which would naturally
have terminated in his death, but there was something unnatural about the
death or the cause of death was unknown. To say therefore that the
“immediate cause of death was undetermined” was to ignore the medical
history of the dead person.
ADMIINSTRATION OF ESTATES
Devolution of Estates (Properties) after the Death of Dceased
Devolution of estates (administration of estates) is governed by the
Administration of Estates Act 1961(Act 63) as amended by the Administration of
Estates (Amendment) Law 1985 (PNDCL 113). Act 63 came into force on 7 th June
1961.
Self-Acquired Property of Deceased
“For all I know, Letters of Administration are applied for and granted in respect of
only the personal or self-acquired properties of deceased persons and cannot be
in respect of properties of living persons”. Adico v Prah [2009] 9 GMJ 65 CA Per
Kanyoke JA
Vesting of Properties on Death
All properties of a deceased person, at the moment of his death are vested in his
personal representatives and not automatically vested in the appropriate
beneficiaries. Section 1(1) of Act 63.
Definition of Personal Representative :
Personal representative is defined in Section 108 of Act 63 “the executor, original
or by representation, or administrator for the time being of a deceased person”.
This means that the personal representative referred to in Section 1 is either the
executor, nominated as such in the will of the deceased, or any person who has
obtained probate of the Will or the person appointed administrator by the Court.
Scope of Powers of Personal Representative
The personal representative has full powers of management vested in him or her
and could therefore sell the property in order to pay debts owed by the estate.

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Opanin Yaw Okyere v Opanin Appenteng & Anor [2012] 42 GMJ 33 SC at 47 Per
Date Bah JSC
FACTS : The deceased by her last will dated 11th August 1983 made several
devices to the second defendant. These devises were challenged by the plaintiff
on behalf of the plaintiff family on the ground that the subject –matter of the
devises were the family property of that family and therefore the deceased
testatrix lacked capacity to make the devises. In response, the second defendant
counterclaimed that the properties devised to her by the testatrix were the
testatrix’s self-acquired properties. The trial High Court entered judgment for her
on her counter-claim. The first defendant was the sole executor of the will under
which second defendant counterclaimed. An appeal to the court of appeal failed.
Whereupon the plaintiff/appellant proceeded to the supreme cout. In the
Supreme court, the appellant argued among others that : the second defendant
had no locus standi to defend a title suit against her until a Vesting Assent had
been executed in her favour by the first defendant.
Held-Per Date-Bah : “ A devisee cannot sue or be sued in relation to the devised
property before a vesting assent has been executed in his or her favour.
Accordingly, in the absence of a vesting assent executed in favour of the second
defendant, she could neither sue or be sued on her devise. The appellant’s
complaint on this score is justified and has to be upheld.”
“The personal representative had full powers of management and could therefore
sell the property vested in him or her in order to pay debts owed by the estate.”
Applicable Law
The law applicable to the succession of a deceased is the law applicable on the
deceased’s death and not at the date of grant of probate or letters of
administration. See Youhana v Abboud [1974] 2 GLR 201
ON DEATH TESTATE
Section 1(2) of Act 63 provides that , In the absence of an executor the estate
shall, until a personal representative is appointed , vest as follows : -
(a) if the entire estate devolve under customary law-in the successor;
(b) in any other case-in the Chief Justice

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See Omanhene of Sefwi Wiawso v Donkor [1965] GLR 462 at 466 Per Koranteng-
Addow J “On the death of a person ,therefore, according to section 1(1) of the
Administration of Estates Act, 1961, both the movable and immovable property of
the person shall devolve upon his successor by descent. Section 1(2) of the Act
makes it clear that section 1(1) applies to intestacy as section 1(2) deals with
testacy. Section 1(2) shows that the Act aims at avoiding a breach in seisin as far
as the immovable property of a testator is concerned. The section provides as
follows : In the absence of an executor the estate shall, until a personal
representative is appointed, vest as follows (a) if the entire estate devolves under
customary law-in successor; (b) in any other case-in the Chief Justice.”.
The facts are that the father of the defendant obtained a piece of land for
farming from the plaintiff, the Sefwi-Wiawso paramount stool, for which he paid
an annual customary fee. On his death, the defendant, as customary successor to
his late father, paid an amount by way of homage. the plaintiff then required him
to enter into a fresh agreement to pay an annual tribute of 18Ghanaian pounds
and subsequently brought an action to enforce this new agreement in the local
court. Judgemnt was given for the defendant and the appeal also faield. The court
held inter alia that by the Administration of Estatees Act, 1961 s. 1(1) on the
death of the defndant’s predecessor the property became vested in the
defendant as customary successor by descent. There was thus no break in the
seisin and the land was not given to the defendant as farmland and that the
purported variation of the original contract was contrary to custom and offended
against the principles of sanctity of contract.

Section 1(2) applies during the interval between death and grant of the letters of
administration to a personal representative as a result of omission to appoint an
executor or when the surviving executor renounces executorship or dies intestate
and the chain of representation is broken or when an executor cannot be
appointed by inference.
ADMINISTRATOR –GENERAL –SECTION 19

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Where there is an uncertainty as to succession, the Administrator-General may
apply to court for an Order or any person interested in the assets or in the due
administration thereof direct the Administrator –General to collect and take
possession of the assets and hold, possess, realize and dispose of any such
directions to provisions of the Act so far as applicable to the assets
The Administrator General in his discretion may apply for a grant of probate or
letters of Administration of the estate of the deceased.
WHAT CONSTITUTES PROPERTY FOR THE PURPOSE OF ADMINISTRATION OF
ESTATES?
The properties of a deceased person include his movable and immovable as well
as properties over which the deceased exercised a general power of appointment
by his Will. –section 108 of Act 63.
Section 3 provides that;
(1) An interest in property which cannot by law be disposed of by testamentary
disposition is not property for the purpose of this Act
(2) Immovable property passing under any gift contained in a Will which
operates as an appointment under a general power to appoint by will shall
be deemed to be property of the testator.
(3) The interest of a deceased person under a joint tenancy where another
tenant survives the deceased is not property of the deceased.
(4) On the death of a corporate sole his interest in the corporation’s movable
and immovable property is not property of the deceased and shall devolve
on his successor
PROBATE
Probate is a certificate granted by the court which signifies that the Will of the
testator has been duly proved and registered at the Registry of the court and
that the executor has been given authority to administer the estate of the
testator.
A Will becomes operative from the date of death of the testator, but his
intentions have no legal effect until it was admitted to probate. Conney v
Bentum Williams [1984-86] GLR 301

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Facts : The plaitniff’s case was that OC deceased) had , by a deed of
conveyance (exhibit C) executed in 1964 and registered in the Deeds Registry ,
sold the disputed land to one Danso (D) who also by exhibit D sold it to one
Badu (B). Subsequently by a deed of conveyance executed in 1969 and
registered in 1971, B in trun sold the land to him, the plaintiff. He said he went
into immediate possession by fencing the land. The plaintiff’s case was
controvereted by the defendant whose case was that OC had by shi will
executed in 1959 devised the same land to his three sons; that OC had died on
30 April 1966 and probate in resepct of his will had een granted to the
executors by the High Corut on 13 December 1967 and that the three sons s
devisees of the disputed land had sold it to him. However in 1977 the plaintiff
saw the defendant excavating the land apparently to start building. He
reported the case to the police who asked for documetns of title from each
rival claimant. As the defendant could produce no documents of title, the
police warned him off the land. He nevertheless continued to build in the
teeth of opposition. The plaintiff thereore sued for a declaration of titel ot the
land. The defendant claimed exhibit C was a forgery . the trial court judge
decreed titel in favour of the plaintiffs against the defendants holding that the
defendant faield to prove the alleged forgery on exhibit C which they claimed.
On appeal, the defendant-appellant contended inter alia hat since OC had died
on 30 April 196 and probate of his will executed on 26 November 1959 had
been gratned by the High Court to his executors on 13 December 1967 and
since neither at het date of OC’s death nor of the grant of probate was there in
effect a conveyance of his interest in the disputed land to anyone other than
the devisees under the will, exhibit C, executed by OC in 194 and which had
not been registered as at the death of OC, was null and void; it voneyed
nothing to D which in 1964 could have been coneyered by exhibit D to b, the
plaintiff’s vendor
Held : It was not correct to say that on the testator’s death, ie 30 April 1966,
there was no valid conveyance of his interest in the disputed land to any
person other than the devisees who happened to be the defendant’s vendors.
At the death of the testator his will would just become operative and not
more. For his intentions as expressed in the will did not have any legal effect
until the will had been admitted to probate. It was only after probate had

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 been granted to the executor that the provisions of the will could be carried
out. And afterh te grant of probate, a beneficiary of any real estate under the
will must have a vesting assent executed in his favour by the executors under
Act 63 , ss 1(1) , 2(1) and 9(1). Until that was done, any purported sale of the
real estate by the beneficiary or the devisee would be of no legal consequence
and the purchaser thereof would not have a valid title. In the instant case, the
evidence clearly showed that no vesting assetn had been executed in favour of
the defendant’s vendors by the executors in respect of the disputed land and
that had still not been done. It followed that the vendors could not, as
devisees, transfer or confer a valid and effective title on the defendant.
PROVING A WILL
A party propounding a Will must satisfy the conscience of the court that the
instrument is the last will of a free and capable testator. Barry v Butlin (1838) 2
Moo PC. In Re Sackitey Decd (1982-83) GLRD 128
Where there is nothing irregular on the face of a Will and there is no dispute
with regard to its validity , the application for probate may be adequately
supported by affidavits deposing to due execution and attestation of the Will
and by any relevant documents as the court may require. See Order 66 r 25 of
the HCCPR 2004 (CI47).
An executor seeking to prove a Will must on oath state :
- The precise date of the testator’s death
- That his place of residence at the date was within the jurisdiction of the
court
The law presumes the sanity of the testator once he is proved to be dead (See
Peters v Peters [1962] 1 GLR 34; See Evidence Act unless his sanity is impeached
where it becomes an issue.
The burden of the testator’s testamentary capacity lies with the executor or the
person who propounds the Will. In Re Sackitey
The presumption of due execution of a Will may be rebutted if the validity of the
Will is challenged. In that case those who propound the Will must show by clear
evidence that prima faice it is valid in all respects.

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Where there is no attestation clause to a Will, the court is unlikely to grant
probate until there is proof in the form of an affidavit by one of the witnesses
that the statutory formalities relating oth te execution of a Will were in fact
complied with. See Order 66 r 18(1)
Where both the subscribing witnesses are dead or if from other circumstances an
affidavit cannot be obtained from either of them, the court may have resort to
such an affidavit from other persons , if any, present at the execution of the Will-
Order 66 r 18(4)
INTERMEDDLING WITH PROPERTY –ORD 66 R(2) (3)
Where any person, other than the person named as executor in a will or
appointed by Court to administer the estate of a deceased person, takes
possession of and administers or otherwise deals with the property of a deceased
person, the person shall be subject to the same obligations and liabilities as an
executor or administrator and shall in addition be guilty of the offence of
intermeddling and liable on summary conviction to a fine not exceeding 500
penalty units or twice the value of the estate intermeddled with or to
imprisonment for a term not exceeding 2 years or to both.
NEGLECT TO APPLY FOR PROBATE ORD 66 R 2(4)
Where a person named executor in the will of a deceased person takes
possession of and administers or otherwise deals with any part of the property of
the deceased, and does not apply for probate within three months after the death
, or after the termination of any proceedings in respect of probate or
administration, the person may in addition to any other liablity which the person
may incur, be guilty of contempt of Court and shall also be guilty of the offence of
intermeddling and liable on summary conviction to a fine not exceeding 500
penalty units or to imprisonment for a term not exceeding 2 years or to both.
FORMS OF PROBATE
A will may be proved either in common form or in solemn form
Common form : Where a will appears regular on the face of it and there is no
dispute as to its validity, the application for probate may be sufficiently supported

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by affidavit deposing to the due execution and attestation of the will and by such
other document or papers as the Court may require. Order 66 r 25 of CI 47
Solemn form : Where for any reason the executors of a Will are in doubt as to its
validity or the validity of the Will is disputed , the executors may if they consider it
necessary to do so, prove the Will in solemn form in an action commenced by
Writ asking the Court to pronounce the Will as valid. Order 66 r 26
VESTING
After the grant of probate by the Court a beneficiary udner the Will must have a
vesting assent executed in his favour by the executor or personal representative
of the deceased in accordance with Section 96 of Act 63
The assent operates to vest in that person the estate /interest to which it relates
back to the death of the deceased. See Conney v Bentum-Williams [1984-86] GLR
301. Okyere (Decd) Peprah v Appenteng & Adoma [2012] 1 SCGLR 65.
Until the proety is vested in the beneficiary any purported sale, dealing with the
property is of no legal effect. Conney v Bentum –Williams.
………
ADMINISTRATOR AS TRUSTEE
An administrator of an estate of a deceased person holds same in trust for the
beneficiaries of the estate. In that capacity he cannot will the property either
specifically or residuary.
Since section 74 of Act 63 empowers the court to charge the estate of an executor
with liability where he is found to have wasted or converted to his own use any
part of the estate of the deceased, the court could trace the property and set
aside any sale or disposition of it and vest same in those entitled to it by law.
QUARTEY V QUARTEY & ORS [1991] 1 GLR 248 : The plaintiffs were the children
of the deceased who was also a brother of the defendants. The plaintiffs brought
an action in the High Court seeking inter alia a declaration of title to a house on
the ground that it was vested in tehm by the residuary devise under their father’s
will. The defendants resisted the claim and counterclaimed for an order setting
aside an indenture relied on by the plaintiffs which had purportedly vested the
house in the plaintiff’s father alone. The High Court found on the evidence that

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the house rather belonged to the deceased father, and the defendants and that
the deceased had entered that property in his capacity as administrator of the
estate of the deceased’s father. The High Court therefore dismissed the plaintiffs’
claim and gave judgment for the defendants whereupon the defendants appealed
against the decision.
Held- per Ampiah JA: That the plaintiffs’ father was only an administrator of the
estate of the deceased and held the property in trust for other beneficiaries of
that estate. In that capacity he could not have willed the property either
specifically or residuary to the plaintiffs. And since section 74 of the
Administration of Estates Act, 1961 (Act 63) empowered the court to charge the
estate of an executor with liability where he was found to have wasted or
converted to his own use any part of the estate of the deceased, the court could
in the circumstances of the instant case trace the property and set aside any sale
or disposition of it and vest it in those who by law were entitled to it. Accordingly,
the conveyance would be amended to reflected the fact that it was executed by K
in his capacity as the administrator of the estate of his father , for and on behalf
of himself and the other children of the father.
ADMINISTRATOR NOT NECESSARILY OWNER
A person who takes Letters of Administration to administer a deceased’s person’s
intestate property only holds the property in trust for whoever is by law entitled
to it. The Letters of Administration per se does not entitle the holder to vest the
vested property in him unless by law he is the property person entitled to the
property.
WELBECK V OKINE [2006] 3 MLRG CA 217 at 232 -233 per Piesare
RIGHTS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
 To collect the deceased’s estate and to sell and convert same into money
required for the purposes of administration in accordance with section
93(1) and (2) of the Act 63 as amended by section 6 of PNDCL 113
 To clear the estate of liabilities by the payment of funeral expenses and
debts. Section 93 of Act 63 as amended by section 6 of Law 113
 To distribute the residue of the estate among the beneficiaries in
accordance with the rules of intestacy. Section 93(4) as amended .

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 DUTIES OF THE PERSONAL REPRESENTATIVE
 To faithfully account to court for his stewardship whenever required.
Section 70 of Act 63
 To execute the Vesting Assent in favour of the beneficiary of any real estate
section 96(1) of Act 63.
RIGHTS OF THE PERSONAL REPRESENTATIVE
 To recoup for themselves from the deceased’s estate for debts or other
liabilities properly incurred properly or reasonably in the course of the
administration.
 To sue even before the grant of probate persons who are indebted to the
testator, or in possession of property belonging to the estate. See YEBOAH
& ORS KWAKYE (1987-88) GLR 63
 To appropriate any part of the estate towards the satisfaction of any legacy
bequeathed by the will. s, 101(8)
 To dispose of the residuary estate according to the provisions of the will.
For further readings on rights and duties, see Chapter 18, Law of Wills in Ghana,
by Samuel Azue Crabbe
NUMBER OF PERSONAL REPRESENTATIVES
Under section 77(1) Probate or administration shall not be granted to more than
four persons in respect of the same property, and administration shall, if there is
any beneficiary who is an infant or if a life interest arises under the will or
intestacy, be granted either to a trust corporation, with or without an individual,
or to not less than two individuals.
APPOINTMENT OF A CUSTOMARY SUCCESSOR
The law is that the family, not the individual appointed, is the successor to the
intestate’s estate of the deceased member of the family. Amarfio v Botchway
(1954) WACA 554; Larkai v Amorkor (1933) 1 WACA 323; Fynn v Gardner (1959)
14 WACA 260; In Re Kofi Antobam [1965] GLR 138. IN RE ATTA (DECD); KWAKO V
TAWIAH
An individual person cannot appoint his own successor who would succeed to his
rights in intestate property after death. The farthest a person can go is to make a
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recommendation to be considered by the family to manage the estate. The family
may treat his recommendation with great respect, however, they are not bound
by it. To forestall this, the deceased must make a will-customary or statutory.
IN RE ATTA:
Where the self-acquired property of a deceased intestate is said to become family
property, it is the immediate family of the deceased which takes the property.
This means hat the family acquire title of ownership to the property. But the
family appiotns a member of the family called the “successor” to administer the
property for and on behalf of the family. The successor does not have titel and is
vicariously described as a trustee or caretaker of the family with powers to
control and manage the property. The successor at customary law is not
necessarily linked up with the property of the deceased. A customary successor is
appointed even if there is no property left behind by the deceased intestate.
Customary successor will not administer and manage any property on behalf of
the family if the deceased does not leave behind any property for the immediate
family.
OWUSU V AGYENTOA : Prior to 185, the customary law was that on the death
intestate of an Akan, his successor, being the next-of-kin, was the person entitled
to inherit him, not his children. The Current position of the law is PNDCL 111,
section 21 thereof stipulates that the provision of Law 111 was to be applied to
any cause or matter pending in the courts after its passage.
APPOINTMENT OF CUSTOMARY SUCCESSOR
The successor must be appointed by the family (presumably by the wider family).
The appointment must be made by the wider family but from among members of
the immediate family or among individuals who are entitled to succeed.
Among the matrilineal communities, the group of successors would consist of all
persons emanating from the same womb as the intestate. These would include
the uterine brothers and sisters of the deceased, and children of such sisters (but
not of brothers).
PATRILINEAL COMMUNITIES

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Among patrilineal communities , the children succeed as of right to their father’s
interest in self-acquired property. See Yawogaa v Yawoga (1958) 3 WALR 309.
Tamakloe v Attipoe (DC Land) 48-51 378 (held that the children of the deceased
are his successsors and that the family had no interest in the intestate estate left
by the deceased). Akrofi v Akrofi [19665] GLR 13
Succession as of right
No individual has the right to be appointed the successor to an intestate
deceased. Attipoe v Shoucaire (DC Land) 48-51 at 17. But Kludze holds the view
that the true position is that in the patrilineal society, the chidren of the deceased
are those entitled to succeed him but that the question of priority inter se is to be
settled by the family. In doing so, the family must be governed by the principle of
priority of seniors or seniors priores. Khoury v Tamakloe (DC Land) 48-51 201.

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