My uncle, Charles was an intelligent and successful man, wealthy in his own right. But with success came certain indiscretions: he fathered six children with three different women, despite being legally married.
On several occasions, my father, would tease him about his “baby mama” drama and urge him to write a Will. “No one wants to deal with that mess after you’re gone,” my father would say. But Uncle Nii Boi always brushed it off, joking that he would sell off all his properties and spend the money before death caught up with him.
My uncle and I were very close, and we could speak openly about anything. So, after I graduated from law school, I had a candid conversation with him about Wills; why it was important to have one, and what made him hesitant to prepare one. That discussion, along with similar conversations I had with others in his age group (40s and 70s), is what inspired this article. I came to realize that many Ghanaians hold deeply rooted and sometimes strange superstitions and misconceptions about Wills: who they’re for, what they mean, and what they actually do.
Let’s set the record straight.
What Is a Will?
Section 1 of the Wills Act, 1971 (Act 360), defines a Will as a written document by which a person, of or above the age of 18, can dispose of their property upon death. It also outlines the requirements for a valid will. For a Will to be valid, it must:
- Be in writing
- Be signed by the testator (the person making the Will) or by someone at their direction
- Be witnessed by at least two people who are present at the same time
- Be signed by the witnesses in the presence of the testator
- Be made when the testator is of sound and sober mind
Why Everyone Should Have a Will
When someone passes away without a Will, their estate is distributed according to the default laws of intestacy in their jurisdiction. These laws follow a fixed formula that may not reflect the individual’s personal wishes, family dynamics, or unique circumstances. In Ghana for example, when someone dies intestate (without a Will) their estate is distributed under PNDC Law 111, which follows a rigid formula that may not reflect the deceased’s true wishes. Here is why writing a Will is essential:
1. It Prevents Family Disputes
We’ve all seen families torn apart after a loved one dies. Bitter arguments arise over who gets what, a house, a car, a company. A Will gives clear direction and removes ambiguity.
2. It Respects Your Intentions
Only a Will guarantees that your property goes to the people you care about, in the proportions you choose.
3. It Protects Vulnerable Dependents
In many Ghanaian communities, widows and children are sometimes harassed or even evicted from the family home when the man dies. A Will ensures that your spouse and children are legally protected and secure.
4. It Simplifies Probate
A Will makes the process of administering your estate quicker and more straightforward, reducing stress for your loved ones.
5. It Avoids Customary Law Conflicts
Without a Will, customary law may come into play, especially in communities with strong matrilineal or patrilineal traditions. This can clash with statutory law and create tension.
What Goes into a Will?
In a Will, the testator can bequeath both moveable and immoveable property:
- Moveable property includes cars, appliances, clothes, jewelry, books, and money etc.
- Immoveable property includes land, buildings, and houses.
You can also appoint executors (people to carry out your wishes), guardians for minor children, and even include funeral instructions.
Who Can Draft a Will?
A person making a Will, known as the testator, can draft their own Will, or with the help of a lawyer. While it’s legally permissible for anyone to write their own Will, doing so without legal guidance can lead to ambiguities or errors that might render the document invalid or open to challenge. Lawyers bring clarity, ensure compliance with legal formalities, and help structure the Will to reduce the likelihood of disputes. In Ghana, a Will needs to go to the Courts to be stamped and sealed which makes a Lawyers role in drafting the Will very crucial.
Where Should a Will Be Kept?
Once a Will is drafted and properly signed, it’s crucial to store it safely and accessibly. Common options include keeping the original copy with a trusted lawyer, in a safe deposit box, or in a fireproof safe at home. Some jurisdictions, including Ghana, allow for the Will to be deposited with a court or government office for safekeeping. It’s also important to inform a trusted family member or executor about the location of the Will so it can be found when needed.
How Do We Know it’s the Final Will?
To be recognized as the final and valid testament, a Will must meet certain formal requirements: it typically must be in writing, signed by the testator, and witnessed according to local laws. If multiple Wills exist, the most recent one (by date) generally prevails, provided it was properly executed and there’s no evidence of undue influence or lack of capacity and most importantly the previous Will is revoked in the most recent one. While registration of a Will is not mandatory in many jurisdictions, doing so if the option is available, can provide added legal certainty and help prevent disputes about authenticity.
Can a Court Change a Will If It’s Unfair?
Generally, a person has the right to distribute their assets as they wish. However, if a Will is considered to be unfair, particularly if it excludes close family members or dependents such as spouse and children and parents, a court may intervene. Most legal systems allow certain individuals, such as spouses, children, or dependents, to challenge a Will on grounds like lack of provision, undue influence, or lack of capacity. If successful, the court can order a redistribution of the estate to ensure fair provision, even if it goes against the testator’s expressed wishes.
Pursuant to Section 13(1) of the Wills Act, 1971 (Act 360), the High Court may make such provisions if the testator has failed to do so, and hardship would otherwise result. A notable case illustrating this principle is Akua Marfoa v. Margaret Akosua Agyeiwaa GHASC 84 (9 November 2016).
In this case, the Supreme Court emphasized that the High Court has the authority to make reasonable provision for dependents from the deceased’s estate, even if the Will does not provide for them. The Court clarified that such intervention does not equate to rewriting the Will but is a necessary step to prevent hardship for those who were dependent on the deceased.
However, it’s important to note that this power is not limitless. The High Court can only make such provisions if:
- The applicant is a dependent of the testator.
- The application is made within three years after the grant of probate.
- The testator failed to make reasonable provision for the applicant, either during their lifetime or by their Will.
- The applicant is suffering or likely to suffer hardship.
- Considering all relevant circumstances, the applicant is entitled to support from the estate.
This legal framework ensures that while testamentary freedom is respected, the rights and needs of dependents are also protected, preventing potential injustice where a testator’s Will inadequately provides for those who relied on them.
Common Misconceptions About Wills in Ghana
There have been many misconceptions about what a Will is and who can prepare a Will. During my research, I was particularly intrigued about why people were so against having a Will. One would think that once a person started acquiring property, it made logical sense to want to have a Will to ensure that their loved ones are protected upon their demise. It was the opposite. I found that some of the reasons people aren’t keen on preparing a Will are:
“Only Rich People Need Wills”
False. If you own anything of value, even if its a shoe, books, a bicycle, 500 cedis in your account or a plot of land, you need a Will. Wealth is not a requirement.
“Writing a Will Means You’re About to Die”
This superstition particularly shocked me. In my discussions with people between the ages of 40 and 70 years, including my own mother, I found it prevalent. However, it is completely unfounded. Writing a Will is an act of responsibility, not an invitation to death.
“My Spouse and Children Will Automatically Inherit Everything”
Not true. Under PNDC Law 111, your property will be divided in fixed shares among your spouse, children, parents, and in some cases extended family, known as the customary successor. Your spouse and children may not receive everything unless you explicitly say so in a Will.
“Customary Law Will Take Care of It; also known as I trust my Abusuapanyin to share my property fairly”
While customary law plays a role, it may not reflect your actual wishes. It is also prudent to not rely on anyone to faithfully carry out your wishes upon your demise. People change, greed and dishonestly are human traits. To ensure that your wishes are carried out, a Will is your best bet.
The Problem with Dying Intestate: A Closer Look at PNDC Law 111
PNDC Law 111 was created to standardize property distribution when someone dies without a Will. But it has its flaws:
Rigid Distribution
The law imposes a fixed formula (e.g., spouse gets 3/16, children 9/16), regardless of personal circumstances or family dynamics.
No Recognition of Long-Term Partners
Unmarried, cohabiting partners even those in long-term relationships, have no rights under the law if there’s no Will.
Limited Coverage of Modern Assets
The law doesn’t adequately address pensions, insurance, shares, or digital assets, which are increasingly common.
No Mechanism to Protect Minor Children
While children get a share, there’s often no structured way to manage their inheritance until adulthood.
Weak Awareness and Enforcement
Many people, especially in rural areas, don’t understand the law, and the probate process can be slow and costly.
The Power of a Will: Why Your Wishes Matter Even After Death
The tragic passing of Nigerian banking executive and CEO of Access Bank Group, Herbert Wigwe, his wife, and their son in a helicopter crash in early 2024 sent shockwaves through the continent. But beyond the personal tragedy came a powerful lesson on estate planning and the importance of a well-drafted Will.
Before his untimely death, Mr. Wigwe had taken the prudent step of preparing a Will. In it, he clearly stated that a majority of his assets and property should go to his daughter. Despite this clarity, a legal battle ensued when Mr. Wigwe’s father challenged the Will, attempting to claim control over the estate and seeking to override his son’s wishes.
However, the courts upheld the Will. Why? Because under the law, the wishes of a testator (the person who made the Will) are binding. As long as the Will is validly made, meaning it meets the legal requirements of being in writing, properly signed, and witnessed, the courts are duty-bound to enforce it. Only the testator has the power to change or revoke a Will, and once the testator passes away, the contents become final.
This case is a clear illustration of how powerful a Will can be. It protects your intentions and shields your loved ones from unnecessary conflict. In Mr. Wigwe’s case, it preserved the rights of his daughter in the face of strong opposition, even from within the family.
It’s important to note that a Will is not a one-time document carved in stone. A testator can update, amend, or completely rewrite a Will at any point during their lifetime. This flexibility allows you to reflect changes in your circumstances, whether you acquire new property, dispose of assets, remarry, or have more children.
The key takeaway? Make your wishes known Clearly and legally. Draft a Will and update it as life changes. It is the only way to ensure your intentions are respected and your family is protected, no matter what happens.
Conclusion
In Ghana, once you reach the age of 18, the law gives you the right to make a Will. This clearly shows that Wills are not reserved for the elderly, nor are they a sign that death is near. And despite what many think, a Will is not only for the wealthy. If you’ve acquired any property, no matter how modest, you should consider preparing a Will.
Given the unique mix of our cultural, religious, and customary practices, dying without a Will often leads to complications. PNDC Law 111 governs how estates are distributed in the absence of a Will, and this includes provisions for extended family members. That distribution formula may not align with your personal intentions, especially if you wish to leave everything to your spouse and children or support other dependents in a particular way.
That’s why it’s critical to take charge of your legacy. Speak to a qualified lawyer and have a proper Will drafted in accordance with the law. A Will brings peace of mind, ensures your wishes are respected, and protects your loved ones from uncertainty and conflict. Planning ahead isn’t just wise it’s an act of care for the people you’ll leave behind.
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