The law and your property: Intestacy

Intestacy describes an estate in which the deceased died without making a Will. The deceased is called an intestate.  The applicable laws are Intestate Succession Law, 1985 (PNDCL 111), Administration of Estates Act, 1961 (Act 63), Probate and Administration Rules, 1991 (LI 1515).

When one dies without making a Will, he leaves behind far more troubles than one who made a Will. In view of that, at the very onset of this article, I shall advise that Ghanaians must make Wills to minimise the post-mortem troubles that emerge relating to the property of the deceased.

With intestacy, the person goes on in life without a Will, till he dies. Some have the superstitious idea that immediately they make a Will, their death would ensue; hence, the absence of one.

PNDCL 111 has the peculiarity of differentiating between the rights of a surviving spouse, child, customary successor and parent, as regards the property of the deceased.

On the death of a person, his movable property such as car, furniture, clothing, working tools, shall be given as of right to the surviving wife or child. And the same applies where he had an only house. Outside these, any other thing is called a residue and divided according to the prescriptions of the law.

The law makes provision for parents and customary successors to have portions of the deceased’s property. I think the rationale for doing so is to underscore the relevance of the family in the social relations among Ghanaians. Where the deceased is survived by a spouse and not a child, she obtains half of the property and the parent and customary successor a quarter each.

Where the intestate is survived by a child only, but not a spouse, the child would be given three-quarters of the estate and the rest given to the parent and customary successor of the person. There are situations where the deceased may be survived by only the parent, but neither spouse nor child. In such cases, the parent is given three-quarters of the estate.

In any situation where the family is entitled to a portion of the person’s property, the family to which he belonged is the family to which the property will go and according to customary succession practices of the family. In very rare cases, where there is neither spouse nor child nor family member, the property of the intestate shall be taken over by the Republic.

An interesting aspect of the law is this; if a child of the intestate dies before the death of the intestate, and there is a grandchild who, as it were, depends on the grandparent, the grandchild would be entitled to the share that would otherwise have gone to his parent, if he had survived the intestate.

The law forbids any family member or person from ejecting the surviving spouse and child from the matrimonial home of the deceased; neither is it permissible where the deceased was in a hired property or bungalow. The law provides the protective hedge of time for the spouse and child to relocate from an official residence or a hired premises.

It is the duty of the administrator of the estate to pay all debts owed by the intestate and also to reclaim all monies owed him. Further, the administrator must vest any immovable property in the name of the beneficiaries, including himself, if he is one.

I must confess I do not know how the courts succeed in sharing property in such fractions as three-sixteenth, one-eight, and one-half. I shall not talk about these.
Let’s rather look at some of the cases that appear in court over intestate property.

An administrator cannot do the following:

•To spend money being held in trust for the estate on his own business. The court would insist he refunds, and pays interest on, such money used: Eid v. Eid   [1979] G L R 290, CA.

•To turn over property being held in trust for the estate to his children, as if the property were his personally acquired one.  The court could go ahead and vest the property in the name of the beneficiaries: Quartey v Quartey   [1991] 1 GLR 248, CA.

•And where the administrator sells property to a third party, the buyer would be in trouble with the law if he did not make enquiries about the property before buying it.

In such a case, the sale would be revoked by the court, for the benefit of the survivors of the estate: Abebreseh v. Kaah   [1976] 2 GLR 46.

In Re Appau (Decd); Appau v. Ocansey [1993-94] 1 GLR 146—159 teaches us three things: a person who has not been appointed an administrator could not go ahead and deal with property of the estate: such an act is intermeddling. Second, a beneficiary who stood to gain from the estate could take legal action to protect his interest without waiting first for a vesting assent; that could be obtained later.  Third, if you intermeddled in an estate even if you were subsequently made an administrator, your actions would still be illegal, as you initially acted without the authority of the law.

The courts are willing to grant letters of administration to customary successors from two different cultural communities involving the deceased, in addition to two other children of the deceased: In Re Koranteng-Addow (Decd); Koranteng-Addow v. Addow [1992] 1 GLR  370-376.

Where the deceased was survived by a wedded wife, priority would be given to the widow and children to apply for letters of administration, in preference to the mother of the deceased, or a concubine of the intestate. Any child from concubinage would be the responsibility of the customary successor and not the widow.  In Re Blankson-Hemans (Decd.); Blankson-Hemans v. Monney and Another [1973] 1 GLR 464-468.

The courts do not grant letters of administration to both a widow married under the ordinance and a concubine, simply because the latter had children with the deceased. Where the deceased had children by different women, one of them is made an administrator, on behalf of the rest, in addition to the married woman and her child/ the customary successor.  In Re Asante (Decd.); Asante and Another v. Owusu [1992] 1 GLR 119–129.

In contentious issues affecting children from different marriages, it is in order for any of the children to apply for the sale of the properties of the intestate and by conversion into cash, allow the court to distribute the money according to law. Of course, if it is consensual, the better; but if not, the court has the power to so order ( Agbaje and Another v. Bucknor [1967] GLR 617-623).

 It is always advisable to consult a lawyer in matters of property administration when the need arises.

Writer’s e-mail: akwesihu@yahoo.com