In Ghana, a Will is a legal document that ensures an individual’s wishes regarding the distribution of their property(ies) after death are followed. Governed primarily by Ghana’s Wills Act, 1971 (Act 360), a valid Will helps manage the assets and estate of the deceased, avoiding potential disputes and uncertainties among surviving family members and third parties.
This article provides an overview of the essentials of making a valid Will, focusing on eligibility, execution, the role of executors and witnesses, and other key legal provisions within the Ghanaian legal framework.
What is a Will?
Under the Eighth Edition of the Black’s Laws Dictionary, a will is a “document by which a person directs his or her estate to be distributed upon death”. It can also be defined as a legal document by which a person (known as the testator) specifies how their property or estate should be distributed after death. This ensures that they can maintain a level of control over the distribution of their assets upon their death. However, not every expression of intention would constitute a valid Will. It is thus crucial that a party complies with the provisions of the Wills Act for a Will to be considered valid in Ghana.
Who Can Make a Will?
According to Section 2 of the Wills Act, any individual who is:
- eighteen (18) years or older,
- of sound mind,
- free from duress or undue influence,
is eligible to make a Will.
Where it is proved that at the time of making the Will the testator was either less than 18 years old, of unsound mind, or, under duress or undue influence, the Court will invalidate the Will.
The Act also allows individuals who are blind, deaf, or illiterate to make a Will, provided its content is read and explained to them before execution, and they appear to understand the Will. Therefore, for a Will made by a blind, deaf, or illiterate testator to be valid, the testator must understand its provisions before execution.
How to Execute a Will
For a Will to be legally binding in Ghana, it must be properly executed. The Act requires that the Will must be in writing and signed by the testator or another person at the direction of the testator on his or her behalf.
The signing must be done in the presence of at least two (2) witnesses as follows:
- Where the Will is signed by the testator himself, there must be at least two (2) witnesses present at the same time, who must attest and sign the Will in the presence of the testator.
- Where the testator directs another person to sign the Will on his or her behalf, it must be done in the presence of the testator with at least two (2) witnesses present simultaneously.
This step ensures that there are no questions about the authenticity of the Will.
Incorporating a document into a Will
If a testator wishes to incorporate another document into their Will, the document must already exist at the time the Will is executed, and it must be clearly identified in the Will.
Alteration of Wills
Where a testator intends to alter any part of the Will, the alteration must be separately executed in the same manner required to execute a Will. Alternatively, the Will may be re-executed or executed by a codicil. A codicil is a “supplement or addition to a Will, not necessarily disposing of an entire estate but modifying, explaining, or otherwise qualifying the Will in some way”.
Executors and Witnesses
An executor is an individual appointed by the testator to ensure that the provisions of the Will are carried out. Executors are responsible for the proper distribution of the estate as stated in the Will.
In Ghana, the executor must be at least 21 years old and must have the capacity to enter into a contract.
Persons who can act as witnesses of a Will.
- An executor can be a witness
- A creditor of the testator (even though the Will provides for the payment of debts with the testator’s property).
- A beneficiary of a Will, if the disposition is for the payment of charges or the payment of debt.
Lapsed Dispositions
A disposition under a Will can sometimes “lapse,” meaning it becomes void and falls into the residue of the estate. Except the Will states the contrary, the property will lapse in the following situations:
- where the disposition is contrary to law
- where the disposition is incapable of taking effect
- where the beneficiary predeceases the testator
Nonetheless, if the disposition is made to a descendant of the testator (e.g., a child) who dies before the testator, the gift will pass to the surviving children of the testator’s descendant unless the Will specifies otherwise.
This, however, does not apply where the disposition is for interest in property which will terminate before or at the death of the testator’s descendant.
Revoking a Will
Just as a Will is created, it may also be revoked. A testator can revoke their Will in various ways, including:
- Tearing or Physical destruction of the Will by the testator or another person in the testator’s presence.
- Making a written declaration of intention to revoke. This must be executed with the same formalities as the Will.
- Execution of another Will that explicitly revokes the previous one.
If a Will is revoked due to fraud, undue influence, or a mistake, it is considered invalid, and the revocation will not take effect. Where the testator changes his or her domicile, the Will does not become invalid or revoked because of the change.
Revival of a revoked Will
Upon the revocation of the Will, it can only be revived by its re-execution or by a written declaration of intention to revive it, executed in the same manner as the Will.
Provision for Dependants
Under Section 13 of the Wills Act, a dependant i.e. testator’s father, mother, spouse, or child can bring an application (not more than 3 years after probate is granted).
The court considers:
- Whether the testator made reasonable provision in life or by the Will
- Whether hardship will be caused.
The Court takes account of the relevant circumstances to determine if, despite the provisions of the Will, reasonable provision should be made for the party.
Reasonable provisions made by the Court may include:
- Payment of a lump sum
- Grant of annuity or a series of payments
- Grant of an estate of interest in immovable property, for life or a lesser period
Wills Made Outside Ghana
A Will made outside Ghana can still be valid if it conforms to the laws of the jurisdiction where it was executed, or if it meets the legal requirements of the place where the testator was domiciled or habitually resided at the time of execution or death.
This ensures that expatriates and Ghanaians living abroad can still have their Wills recognized in Ghana, provided they meet these conditions.
Depositing a Will
A Will can be deposited with the High Court in Ghana for safekeeping. Before it is deposited, it must be sealed and secured by both the depositor and the Court.
In cases where a party finds or has in his or her possession a Will after the testator’s death, it must be submitted to the court within 14 days, failure of which could result in a fine not exceeding two thousand (2000) penalty units or a term of imprisonment not exceeding ten years.
Conclusion
Understanding the requirements and process of drafting, executing, and revoking a Will in Ghana can protect the testator’s legacy and their family’s future. For anyone looking to create a Will, consulting with a legal expert is recommended to ensure compliance with the Wills Act, 1971 (Act 360).
By being informed, individuals can make confident and clear decisions about the management and distribution of their estate.
