Intestate Law in Ghana

Ghanaian Inheritance Laws affect everyone who owns property or assets in Ghana.

If someone dies without a Will then the estate (property and assets) will be administered according to the laws of intestacy in Ghana.

Who is included and excluded from inheriting particular assets depends on legal property rights, as well as religion and cultural norms concerning social roles and relationships.

Ghana is a common law jurisdiction, and in recent years, judicial decisions have set precedents in what can constitute the establishment of property and inheritance rights, such as criteria for the recognition of customary marriages.

The difficulty of choice of law in Ghana often arises from the fact that the intestate law has been previously guided by various religions and customary succession rights. Therefore, when a legal dispute arises, it is often difficult to establish which law to apply.

The law of succession comes with inherent problems. Not only are there different forms of succession laws in Ghana, but these laws must coexist with marriage laws and the ‘received English law’.

What inheritance laws apply in Ghana?

The principal laws relating to inheritance in Ghana are the following:

• Constitution of the Republic of Ghana, 1992
• Administration of Estates Act, 1961 (Act 63)
• The Wills Act, 1971 (Act 360)
• Intestate Succession Act, 1985 (PNDC Law 111)
• Intestate Succession Amendment law, 1991 (PNDC Law 264)
• Conveyancing Act, 1973 (NRCD 175)
• The Marriages Act, 1884 – 1985 (Cap 127)

Making a Will

You are permitted to make a Will if you are at least 18 years old. You do not need a lawyer present when making a Will, however, it is highly recommended to have one present.

Intestate/Succession Law

Without the presence of a valid Will, the Intestate Succession Law, 1985 promotes spousal inheritance of property and assets.

It recognises the spouse(s) of the deceased, their biological or adopted children, surviving parents and the customary family, prioritising spouses, and children.

The main opportunity provided by the Intestate Succession Law 1985, is the protection of the surviving spouse’s property rights in intestate succession. It applies to self-aOAKSuired property after 1985 which has been bought, inherited or would have been inherited.

It also allows a spouse, child, parent and customary family to apply for ‘Letters of Administration’ to distribute the property of someone who died without a Will.

It also recognises that a surviving spouse and children face insecurity under customary law, and that a wife’s role in a husband’s economic activity requires legal recognition.

The existence of this law in Ghana has helped many of widows and children escape poverty, however, it still has some serious challenges especially for women living in rural areas.

There are still traditional succession plans, depending on ethnic group, that are contrary to the statutory law. Each choice made by the widow has consequences and is dependent on each specific case. Many women face several challenges upon their husband’s death.

Challenges

There are many challenging factors that may deter women from seeking a remedy in court.

The major limitation of the existing law is that it only pertains to self-aOAKSuired property and not to any lineage property, which is the classification of the majority of land in Ghana. This distinction leaves no protection under the law for a spouse’s or children’s claims to the deceased’s (lineage) landholdings.

Another significant challenge with the existing Intestate Succession Act is that it does not specifically address polygamy. In cases where a deceased man has multiple wives, the courts may interpret the succession law as granting the household items and one house to all the deceased’s wives and children as tenants-in-common.

There also remains a significant restriction in the Intestate Succession Act’s definition of a spouse, as it does not include cohabiting partners who are not married according to Ghana’s marriage laws.

Determining which law should be used in property and inheritance rights for spouses depends on the type of marriage. A judge must then try to determine whether the relationship constituted a customary marriage, and evidence is often dependent on witnesses’ testimonies.

The Intestate Succession Act (Section 5) contains further complicated formulas for the division of the estate among various relatives. For instance, where the intestate is survived by a spouse and children:

• 3/16 goes to the surviving spouse
• 9/16 to the surviving children
• 1/8 to the surviving parent and
• 1/8 is according to customary law

However, experience shows that many Ghanaian families do not follow the provisions of the Intestate Law, fearing it would dissipate their property. Most families still follow customary law.

The complex nature of intestate succession presents Ghanaian courts with difficult choices when determining which law to apply.

By drafting a Will, an individual can ensure that a favourable distribution of the estate is achieved other than that established by other laws.

What Am I Entitled To?

The Intestate Succession Act specifies that spouses and children are entitled to the household chattels (i.e. jewellery, clothes, furniture and household appliances, simple agricultural equipment, motor vehicles and household livestock).

If the deceased’s estate includes one house, the spouse and children are entitled to it and will hold it as tenants-in-common. If the deceased left multiple houses, the spouse and children are entitled to only one house.

Amendments in 1991 have made it an offence punishable by fine or imprisonment to eject a spouse or child from the matrimonial home prior to the distribution of an estate, whether there is a Will or not.

If there is disagreement, or if parties are unable to make such a choice, then the High Court, upon application by the administrator of the estate, can determine which of the houses is distributed to the spouse and/or children.

You should seek legal advice if you are concerned about what you may inherit or disagree with the distribution of property.

Intestate Succession Laws – Foreigners

The High Court has jurisdiction to make decisions about property in Ghana owned by foreigners.

The Intestate Succession Act 1985 applies automatically, subject to the rules of Private International Law.

What If There Is No family?

If the deceased has no family, the Administrator-General takes charge of the payment of the deceased´s debts, fees, expenses, and liabilities, and pays the balance to the Accountant-General.

The Accountant-General, in turn, informs the Attorney-General, who publishes the accounts, announces the completion of the administration of the estate, and calls on claimants to present their petitions to court on legal, equitable, or moral grounds.

Claimants have two years to make a claim by petition to the Attorney-General. Any order made by the court concerning the petition is published.

Making a Will in Ghana

It is advisable for both Ghanaians and foreigners who have property governed by Ghanaian jurisdiction to make a Will in Ghana. The advantage is that once Probate is granted, the administration of the estate can commence immediately.

About OAKS Legal

OAKS Legal & Consulting is a law firm based in Accra, Ghana that serves the needs of a broad range of corporate and private clients.

Our team of lawyers are specialist in Intestate law and Will writing in Ghana, helping many individuals through what is a sensitive and complex process.

We pride ourselves on our excellent service and extensive understanding of the legal systems, cultures, economic and regulatory environment in Ghana and sub-Saharan Africa. Total client satisfaction is always our goal and we see ourselves as partners with our clients in achieving their objectives.