Like every other event in life, believe it or not, death ought to be planned too. In olden times, the wishes of the dying sometimes came on their deathbed. Others stipulated these in writing while in good health. One of the ways to plan for death is to draw up a will for the posthumous disposal of their properties. In Ghana, the Wills Act 1971 (Act 360) has, since 1971, prescribed what is required to make a death plan that is binding on society posthumously. In order for a person to draw up a will which is valid the following must be complied with:
The individual must be eighteen years of age or above
The will must be written
They must be entitled to/own some property at the time of death, or entitled to some property thereafter
They must be of sound mind and
The will should not be made under duress, undue influence or fraud.
To be VALID, a will must be executed; which simply means the will must be in writing, signed by the testator (the person who makes the will) and made in the presence of two witnesses. The witnesses must also sign the will in the presence of the testator. In the case of a blind or illiterate person, a clause known as a “jurat clause ” must be included to indicate that the contents of the document were duly explained to the testator in a language he/she understands and that the testator approved of the said contents before either appending a signature or making a mark or thumbprint.
Every will also require two “executors ”. Executors are the people the testator is entrusting with the responsibility to ensure that the necessary processes and procedures are followed to enable the property to be shared as the testator wishes. Executors must be 21 years or above and of sound mind. When a will is completed it may be deposited at the High Court for safe-keeping. If it is not deposited, any person who comes across a will after the death of a person has a responsibility to deposit it at the High Court within fourteen (14) days of finding it. Thereafter, arrangements will be named to gather the family and have the will read.
It is wrong to assume that once a will has been read and property is given to a person they can just go ahead and start using and/or enjoying it. The reading is just informative. Before “property ” given away in a will can be “used/enjoyed ”, an application has to be made to Court by the executors named in the will. When the Court is satisfied that the will was truly made by the testator and there are no objections, a document known as “Probate” is given which gives the Executors legal authorization to share the property in accordance with the will.
Probate will be granted only when there are no objections to the will or its validity. After probate is obtained, a certified true copy can be attached to a letter to any bank or other financial institution with which the testator was saving to have access to the funds therein. If the institution requires any further documentation, it would usually request so.
For landed property (houses etc) a document known as a “vesting assent ” must be prepared to officially transfer ownership of the property to the beneficiary.
A will may be amended as many times as the testator wants before he/she dies.
In essence, therefore, a will serves numerous purposes including:
planning for death
allows for the orderly division of property/other belongings after death
ensures that the wishes of the dead person are carried out.
Dying without a will
In the case of those who die without making a will, all hope is not lost. The law makes provision on how property should be distributed when a person dies without a will (intestate) under the Intestate Succession Law, 1985 (PNDC Law 111) . Before 1985, it was observed that the external family mostly took over the properties of a family member who died intestate and deprived their spouse and children of benefitting from the properties. This law was therefore passed as an intervention to stop such abuse and injustice.
Under the law, all “household chattels ” belonging to the deceased passes on to the surviving spouse and children. If a person dies in possession of several landed property, the wife and children are entitled to choose one for their occupation. Under the law, either the surviving spouse, children, surviving parents or customary successor may apply to the court upon the passing of a loved one who dies intestate. But they must not exceed four in number making the application. So, it may be the surviving spouse, the eldest of the children, and the customary successor.
Once an application is made to the court, informing it about the death, the court will make an interim grant of official authorization known as “Letters of Administration”. Notice will then be posted at vantage points to give individuals who may have an interest in the property/belongings of the dead person but who may not know about the death of the person to intervene or join. If after the notice period, no such person has come forward, the “Letters of Administration” are given to two individuals to ensure that the property is shared in accordance with the different scenarios provided for in PNDC Law 111. Essentially, the Letters of Administration are used the same way probate is used.
There are some situations in which a person may make a will but which may not cover all his/her property/belongings. In most cases, a will would have a clause known as a “RESIDUAL CLAUSE ”, which would make provision for that. If there is no residual clause, then probate can be obtained for the will and then steps can be taken to obtain letters of administration for the property/ other belongings not covered in the will.
It is always advisable to seek a lawyer’s advice and guidance when drawing up a plan in preparation for death.
