Ghanaian inheritance laws affect everyone who owns property 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)
Ghanaian law is emphatic that, in relation to immovable property, the
law of the place where the property is located is applicable.
The High Court in Ghana is competent to deal with inheritance issues.
The High Court has jurisdiction to take decisions about property in
Ghana owned by foreigners. The Circuit and District Courts may also
deal with inheritance issues if the value involved does not exceed
their statutory limits. The special facts or merits of each case
determine how long the Court proceedings last, but inheritance cases
are, on average, disposed of within three months.
Intestate succession laws in Ghana apply to foreigners.
The Intestate Succession Act, 1985 (PNDCL 111) applies automatically,
subject to the rules of Private International Law, to both foreigners
and citizens of Ghana who die leaving assets in Ghana but do not make a
will,. However, experience shows that many Ghanaian families do not
follow the provisions of PNDC Law 111, fearing it would dissipate their
property. Most families still rely on the dictates of customary law.
Under the rules of PNDCL 111, in the absence of a will, the entire
estate of the deceased devolves to the next of kin. The compulsory
beneficiaries are the children, spouse and parents of the deceased. The
fraction of the estate distributed to each heir varies according to the
numbers and categories of heirs involved in the distribution.
The surviving spouse and/or children are entitled to all the
household chattels of the deceased. If the estate includes one house,
the surviving spouse and/or children are entitled to own it. If the
estate includes more than one house, the surviving spouse and/or
children must decide how the houses are devolved, and they own the
houses as tenants in common. If there is disagreement, or if they are
unwilling, or unable, to make such a choice, then the High Court, upon
application by the administrator of the estate, can determine which of
the houses devolves to the spouse and/or children.
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. Equitable or
moral claims refer to those of dependants of the deceased or other
persons for whom the deceased might reasonably have been expected to
make provision. Claimants have two years to make a claim by petition
to the Attorney-General, unless the court fixes a shorter time. Any
order made by the court in relation to the petition is published.
The reserved portion must be catered for in a will.
There is a reserved portion of the estate, to ensure that some
categories of people are not excluded from the will. The rules are
complex. The portions depend on the numbers and existence of each
category of heir. The minimum reserved portion is a 1/8 share to each
person, if the deceased is survived by a spouse, children, and parents.
The maximum share is ¼ to each person, if the deceased is survived by
only parents with no spouse or children.
Once these categories are catered for, then the testator is free to
distribute the residue of the estate as he/she desires, including those
already beneficiaries under the reserved portion.
If the deceased failed to make provision in his will for a financial
dependent, that person can apply to the High Court for provision.
Foreign wills are upheld in Ghana
The will of a foreigner is usually upheld by Ghanaian law if the
formalities of execution comply with either the laws of Ghana, or with
the national law of the country where the will was made. If the will of
a testator has been proved according to the law of a foreign
jurisdiction, then a Court in Ghana would hesitate to declare it
invalid, and be hesitant to vary or set aside the testator’s wishes.
The applicable law for the execution of a will is influenced by the
personal law of the testator, such as customary law; Mohammedan law if
Muslim; Common Law; or the law of another jurisdiction. In the absence
of any specific provision as to which laws should govern the devolution
of property in Ghana, Ghanaian law is the applicable law.
In the case of a joint will, made by a married couple with different
religions and/or nationalities, the wishes of each party are construed
differently, in conformity with the personal laws of the respective
parties. The Courts Act, 1993 (Act 459) provides that the applicable
laws governing any issues arising between such married couples are the
relevant rules of their different systems of personal law, with a view
to achieving a result that conforms with “natural justice, equity and
good conscience”.
It is normal to make a will in Ghana.
It is advisable for a foreigner who has property governed by Ghanaian
jurisdiction to make a will in Ghana. The advantage is that once
proved and admitted to probate, the administration of the estate can
commence immediately. On the other hand, a foreign will admitted to
probate in the jurisdiction in which it was made must also be proved
and admitted to probate in Ghana, before the estate to which it applies
can be administered.
The physical presence of a foreign testator in Ghana is required to
make a written will. The testator must sign or acknowledge his
signature in the presence of two or more witnesses who are present at
the same time. The will can also be signed on the testator’s behalf in
the testator’s presence with two or more witnesses present. The
witnesses are also required to attest and sign the will in the presence
of the testator, but no legal form of attestation is necessary.
Gifts can be made during the lifetime of the property-owner.
Most property in Ghana can be given freely to anyone during the
lifetime of its owner. The requirements are: the donor must be the
legal owner of the gift; the donor must have the age, mental capacity,
and intention to make the gift; and the gift must be delivered to and
accepted by the donee during the lifetime of the donor.
Household chattels, except those used exclusively for commercial
purposes, may not be given to anyone, since they are reserved for the
surviving spouse and children. The giving of property to which other
people have interests is restricted by law, and cannot contravene
co-ownership arrangements. In the case of a malicious disposition of a
gift, a surviving spouse, children or family member can apply to Court
to challenge the gift after the death of the donor.
Title deeds confer legal property ownership, but Ghanian law also recognizes trusts.
Title Deeds confer the legal title of property to named individuals,
but other persons, such as minors and other legal incompetents, may
have equitable interests, and trustees may hold equitable interests in
property for other persons. The Court, where necessary, looks beyond
Title Deeds to establish ownership of property.
Property rights of husband and wife are separate.
In Ghana, any properties acquired by spouses in their own right
remain separate throughout their marriage and do not become jointly
owned.
If a husband buys property in the name of his wife, the husband is
presumed to have intended the property as a gift for his wife. This
can, however, be rebutted by cogent evidence to show that a gift was
never intended, and the husband wanted to retain a beneficial interest.
If a husband can show that he made a substantial contribution to the
acquisition of property in the name of his wife, he could obtain an
order of the Court decreeing that his wife holds the Title Deeds to the
property in trust for himself.
Minors can inherit property.
A trustee can be appointed in the will by the testator to protect the
interests of minors or persons not of legal age who inherit property
in Ghana. The Court can also appoint trustees over property intended
for minors and other legal incompetents.
