In layman’s terms, a will is document made by a person while alive containing instructions on who gets what property belonging to the said person after his death.
A will therefore allows a person to have their properties distributed according to their wishes rather than have them fall in intestacy and in effect shared according to whatever intestate succession law pertains to the jurisdiction.
In Ghana, wills are governed by the Wills Act 1971 (Act 360) and the common law rules pertaining to wills so long as they’re not contrary to a constitutional or Statutory provision.
While it is reasonable for one to expect that a person making a will should make reasonable provisions for his closest family, particularly his children, surviving spouse and parents, in the case of Bird v Luckie (1850) 68 ER 373 Knight Bruce said “No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good.
A testator is permitted to be capricious and improvident, and is more at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions.
Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.”
Effectively, if a man decides to not leave a dime for his children, spouse or parents, at common law, nothing can be done about it. His wishes as contained in the will stands sacred and in the absence of any irregularities, the estate shall be administered as provided in the will upon his death.
The Ghanaian Wills Act 1971 (Act 360) and Bird v Luckie
Article 11 of the 1992 Constitution of Ghana is to effect that, the common law and rules of equity are applicable in Ghana, to the extent that they don’t contradict the constitution, legislations and the existing law. This means the holding in Bird v. Luckie is binding in Ghana, but only to the extent that it does not conflict with domestic law.
Enter the Wills Act 1971. The act does not entirely agree with the holding that a person, in the making of his will can be capricious and improvident. Section 13 of Act 360 is reproduced below:
Section 13—Provision for Dependants
(1) If, upon application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased.
(2) Without prejudice to the generality of subsection (1), such reasonable provision may include—
a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payments;
b) grant of an estate or interest in immovable property for life or any lesser period.
Effectively, what section 13 of the Ghana Wills Act 1971 says is that, where a testator does not make provisions for dependants either in his life time or in his will and it can be shown that this improvidence will occasion hardship on the dependants, then the courts may step in and make provisions for such people from the will of the testator.
This power of the court is not without conditions precedent. To be able to move the court to come to your aid as person in the class of dependants so named under Section 13, you must:
1. Apply to the court within 3 years of the grant of probate
2. be below the age of 18 if you’re a child dependent
3. Show that you were not given reasonable provision either during the lifetime of the testator or in the will
4. Prove that you’re suffering or likely to suffer hardship by virtue of the improvidence
The importance of meeting these conditions was illustrated in the case of Humphrey-Bonsu and Another v Quaynor and Others [1999–2000] 2 GLR 781. In this case the deceased made no provision for his children, one of whom was mentally and physically challenged. It was shown that the applicants were well over 18 years of age.
The Court of Appeal was emphatic in its holding that, the requirements of section 13 of the Wills Act 1971 is clear, children above the age of 18 are not qualified to apply for the courts to consider and make provisions for them irrespective of the obvious hardship that would befall them due to the improvidence of the testator.
Therefore, where a parent leaves nothing for you in their will and you qualify as a dependant under the conditions outlined above, the court may come to your aid upon application and if satisfied. The court may order reliefs such as a lump sum payment (either immediate or deferred), an annuity or a series of payments, or an interest in landed property for life or for a specified number of years, as it deems appropriate from the estate of the testator.
Conclusion
The liberty of a testator to make his will as he please and to have it complied with is subject to some restrictions under the Ghana Wills Act 1971 (Act 360), where his improvidence for his parents, spouse or child is likely to occasion hardship on such dependants. It departs from the common law position in Bird v Luckie and is firmly grounded on public policy considerations. Indeed, charity must begin at home.
Columnist: Joseph Naah-Yerreh
