Introduction
This paper takes inspiration from Professor Kludze’s seminal work, Modern Law of Succession in Ghana, where he advocated for greater public awareness and education on the importance of making wills:
“It is suggested that a sustained programme of publicity and education be instituted, in order to impress upon the public in both English and local languages the advantages of making wills.”
At its core, a will is a formal statement made by an individual outlining their wishes regarding the distribution of their estate and related matters – following their death. There is a common misconception that a will only refers to a written document purposefully drafted as a legal declaration.
In reality, regardless of whether one drafts a will or not, a will of some form exists for every individual. In the absence of a prepared will, the law has established pre-determined guidelines for the distribution of your estate upon your death. The Intestate Succession Law, 1985 (PNDCL 111) governs this distribution, ensuring that assets are allocated according to a predefined legal framework.
Given that death, much like taxation, is one of life’s certainties, it is disheartening that many people regardless of wealth, age, or status leave their legacies in the hands of a statutory mechanism rather than making proactive arrangements.
Understanding PNDCL 111: The Law of Intestate Succession in Ghana
The enactment of PNDCL 111 in 1985 marked a significant milestone. It sought to acknowledge the growing significance of the nuclear family and reduce the dominance of the extended family in matters of inheritance. The law offered protection to surviving spouses, who frequently found themselves marginalized and excluded from inheritance rights under customary practices. Nevertheless, despite its progressive intentions, the law has inadvertently given rise to new challenges.
A primary concern is the rigid fractional division of property, which complicates its practical application. In the absence of a will, the distribution of assets will occur as follows:
1. Household Chattels (Personal Belongings)
Personal belongings including jewelry, clothing, furniture, home appliances, books, and cars (excluding commercial vehicles) are inherited absolutely by the spouse and/or children. This grants them complete ownership, allowing them the option to sell these assets if they choose.
Commercial vehicles (such as taxis, trotros, and delivery bikes) do not fall under this category, which implies that they may not automatically transfer to a surviving spouse or children unless they were used for both private and commercial purposes. This raises questions regarding the status of modern transport services like Uber and Bolt.
2. The Family Home
In the event that the deceased owned one house, it becomes the exclusive property of the spouse and/or children. This provision likely sought to prevent the practice of evicting surviving spouses from their homes following the death of their partners.
In cases where multiple houses exist, the spouse and/or children have the option to select their preferred property. For example, if the deceased owned a ten-room apartment complex but resided in a smaller two-bedroom home, the beneficiaries may choose to take the larger property.
Should a disagreement arise regarding the selection of the property, the High Court may intervene, but only at the request of the administrator rather than the feuding parties themselves.
3. Residual Estate (Remaining Assets)
Following the allocation of personal possessions and the single house selection, the residual estate which includes financial assets, investments, land, other properties, businesses, etc. will be shared based on the following structure:
(a) If the deceased left a spouse and children:
• 18.75% to the spouse
• 56.25% to the child(ren)
• 12.5% to surviving parent(s) (if no parent is alive, this portion is added to the customary law share)
• 12.5% is distributed under customary law (typically inherited by the extended family)
(b) If the deceased left only a spouse:
• 50% to the spouse
• 25% to surviving parent(s) (if no parent is alive, this portion is added to the customary law share)
• 25% under customary law
(c) If the deceased left only a child:
• 75% to the child
• 12.5% to surviving parent(s) (if no parent is alive, this portion is added to the customary law share)
• 12.5% under customary law
(d) If the deceased left only a parent:
• 75% to the parent
• 25% under customary law
(e) Small Estates Exception
If the total value of the estate does not exceed GHS 50,000, the entire estate will be inherited by the spouse and/or children. If neither is alive, the estate will be passed on to the surviving parents.
Practical Challenges of Fractional Sharing
At first glance, these rules seem fair. However, real-life scenarios expose flaws in the law’s rigid structure.
1. Indivisibility of Property
How can one equitably allocate a three-bedroom house between a spouse, three legitimate children, and two children from an extramarital affair? While the law provides guidelines in terms of percentages, it lacks a practical approach for the equitable division of physical assets.
2. Problematic Spousal Entitlements
Under the law, a spouse who has been neglectful or abusive is entitled to a share of the estate. A man who abandoned his wife and failed to fulfil his marital obligations may still inherit under the law provided that no divorce has taken place. Many individuals in such situations actively pursue their legal entitlements.
3. Complex Family Dynamics
Family disputes become significantly more complicated when children from previous marriages or extramarital relationships are involved. While all children have an equal right to inheritance, such conflicts often lead to legal confrontations or the forced sale of properties, ultimately undermining the legacy of the deceased.
4. Modern Assets and Business Ownership
PNDCL 111 does not account for emerging forms of wealth including intellectual property, investment portfolios, cryptocurrency, and online businesses. What strategies can be employed to distribute a thriving online business among heirs without jeopardizing its survival?
For businesses, the law’s approach to fractional sharing is particularly problematic:
• If the deceased held shares in a company, distributing them among multiple heirs could dilute control and weaken the business.
• If the deceased owned a sole proprietorship, all business assets (cash, stock, vehicles, etc.) are subject to division, which frequently leads to the collapse of the business.
This explains why many family businesses in Ghana do not survive beyond the first generation.
The Role of Wills in Securing Your Legacy
Wills hold significant importance; however, they are not classified as “legal documents” under Ghana’s Legal Profession Act, 1960 (Act 32). Consequently, individuals who are not lawyers are permitted to draft and execute valid wills.
This provision is a beneficial feature of Ghana’s legal framework, as it enhances accessibility to will- making for all citizens. Nonetheless, there must be sustained public education to ensure individuals comply with legal requirements, thereby avoiding the risk of their wills being deemed invalid.
A well-prepared will:
Provides certainty – ensuring your wishes are clearly carried out.
Protects loved ones – shielding them from legal battles and uncertainty.
Preserves legacies – preventing wealth from being lost due to family disputes or forced sales.
Final Thoughts
To guarantee that your assets are allocated in accordance with your preferences, rather than being subjected to a rigid statutory formula, it is essential to take proactive steps now. If you are uncertain about how to proceed, it may be beneficial to seek the advice of a professional. Your legacy should not be left to chance.
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