06 Jun Inheritance Law In Ghana – What Happens To Children When Parents Die?
Generally, when a person kicks the bucket, their property is redistributed. How the redistribution takes place is dependent on whether the person died testate (they died leaving behind a valid will) or intestate (they died without preparing a will).
In Ghana, the Wills Act, 1971 (Act 360) is the statute which governs the creation of wills, how wills are regulated and operated, and other related matters whereas the Intestate Succession Law, 1985 (PNDCL 111)[1] makes provision for the manner in which the property of a deceased person who dies intestate should be distributed.
A will is a legal document in which a person (the testator) states how their properties are to be dealt with on their death. Act 360 sets out the essential requirements of a valid will in Ghana. A valid will must be made by a person of sound mind who is eighteen (18) years and above.[2]
It must also be in writing, be signed by the testator, or some other person on his direction and in his presence and must be attested by the signatories of at least two witnesses in whose presence the signature must be made or acknowledged.[3]
Prior to the enactment of PNDCL 111, when a person died intestate, customary law did not regard the wife as part of the husband’s economic unit and therefore, her claim on her husband’s property was limited. Additionally, children were only entitled to maintenance by their father’s customary successor and could only remain in their father’s house if they were of good behaviour. The extended family, therefore, had priority over the nuclear family when it came to matters of succession and inheritance. The passage of PNDCL 111 sought to protect the interests of the nuclear family in the face of death intestate and provide a uniform intestate succession regime that will be applicable throughout the country irrespective of the class of the intestate and the type of marriage contracted by him or her.
Both Act 360 and PNDCL 111 contain provisions that are fixated on ensuring that the rights of children to proprietary and financial claims are salvaged in the event that they lose a parent.
Although the general principle is that effect should be given to a will where it is made according to the wishes of the testator, Act 360 presents an exception to this rule. Per section 13 of Act 360, where a testator does not make a reasonable provision whether in life or by his will for the maintenance of a child under eighteen (18) years, the court can interfere with the will made by the testator.[4]
For the court to make such interference, the affected child must file an application before the High Court, requesting the court to give a reasonable provision to the child. This application must be made within three (3) years from the date on which probate of the will is granted.
Where such an application is made and the court is satisfied that the testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of the said child who is under 18 years of age, and that hardship will thereby be caused, the court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, order the payment of a lump sum, a series of payments or grant an interest in immovable property to the affected child.[5]
The central objective of PNDCL 111 is to secure the bulk of an intestate self-acquired estate for the surviving spouse and children. The Act ensures that where the intestate is survived by a spouse or child or both, they are entitled to all the household chattel which includes the deceased’s personal effects[6]. Additionally, where the estate of the deceased includes a house, the house devolves unto the surviving spouse and child.[7] Where the deceased died possessed of several houses, the surviving spouse and children have the first choice of one of those houses, including the matrimonial home.[8]
Further, the child of the deceased is entitled to the majority of the residue of the estate of the deceased. This is equivalent to 9/16 of the residue where the deceased is survived by a spouse and child and ¾ of the estate of the deceased where the deceased is survived by only a child.[9] Where the total value of the residue does not exceed ₵10 million[10] the residue shall devolve to any surviving spouse or child of the intestate or where both the spouse and child survive the intestate to both of them.[11] Again, prior to the distribution of the estate of a deceased person whether testate or intestate, no one can eject a child from the matrimonial home under any one of the following circumstances:
- where the matrimonial home is the self-acquired property of the deceased;
- where the matrimonial home is rented property, unless the ejection is due to a court order;
- 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
- where the matrimonial home is public property unless a period of three months has expired from the date of the death of the deceased.[12]
PNDCL 111 even goes further to make provision for grandchildren of the deceased where the child of the deceased predeceases him/her and their child (the grandchild) was dependent on the deceased at the time of death.[13] Additionally, the Act defines ‘child’ to include not only natural children of the deceased but also the deceased’s adopted children.[14]
From the above, the law has created legal routes for children to be able to make proprietary and financial claims with regards to the estate of their parents in the event that they kick the bucket. These inroads are tailor-made for both situations where the parent dies testate or intestate. Evidently, the law has the best interest of children at heart.
This publication may provide a summary of legal issues but is not intended to give specific legal advice. If you require legal advice, please speak to a qualified lawyer, which may include a qualified member of our legal team at B&P ASSOCIATES (info@bpaghana.com).
AUTHORS:
Maame Barnie Adu Amoah (Legal Associate)
Bessy Agyeiwaa Crentsil (Legal Associate)
[1] A new Intestate Succession Bill was laid before Parliament on October 30 2018. It is envisaged that the passage of this bill will result in variations in the current regime which would offer even greater protection to children where a parent dies intestate.
[2] Wills Act, 1971 (Act 360), s. 1(1) & (2).
[3] Ibid, s. 1(2).
[4] Apart from the provision in Section 13, the court cannot interfere with a valid will of a testator. This is because the policy of the courts in matters affecting testamentary dispositions was to give effect to the last wishes of the deceased and to uphold them unless there were overriding legal obstacles in the way – Re Mensah (Dec’d); Barnie v Mensah and Others [1978] 1 GLR 225 CA.
[5] Wills Act, 1971 (Act 360), s. 13 (2).
[6] Intestate Succession Law, 1985 (PNDCL 111) s. 3.
[7] Ibid, s. 4 (a).
[8] Ibid s. 4 (b).
[9] Ibid, s. 5.
[10] This was the figure prior to the redenomination of the cedi. There have been no amendments to this figure thereafter.
[11] Ibid, s. 12 (a).
[12] Ibid, s. 16A (1).
[13] Ibid, s. 16.
[14] Ibid, s. 18.