The law and your property: Testacy
In this article, I shall deal specifically with testacy, as regards your property. Testacy refers to an estate that is governed by a will, and becomes operational after the death of the maker of the will. The maker of a will is called a testator.
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The relevant laws are The wills Act, 1971 (Act 360), Administration Of Estates Act, 1961 (Act 63), Probate and Administration Rules, 1991 (LI 1515).
Cases which appear in our courts regarding issues about property mean the general public is not well informed about the laws that affect their property. Of course, the question is: Who is to teach them about the laws? Let’s begin with wills.
A will is a legal document made by a testator, showing how his property should be shared on his death. In fact, a will could go beyond the sharing of property and deal with other matters that the testator had expressed his wishes on. You must think of making a will when you have acquired property, whether few or substantial, regardless of your age. Don’t wait till your old age, or when sick in bed, before making a Will.
Mental alertness
The first practical advice is that you must be mentally alert to know what you’re doing. Infirmity and insanity could disqualify your Will, as it would be presumed you acted without knowledge of what you did. Your Will covers everything you possess, and, apart from immediate family, you could give to friends, adopted children and to organisations.
Secondly, at the time of signing your will, there must be at least two persons who should be present at the same time and in each other’s presence, to attest your signature. If this requirement is absent, the will is invalid.
If you made mistakes in your will, it is better to make a new one than to leave the amendments on the Will, as it suggests forgery. If the amendment is slight, you should sign against it to make it valid.
Apart from the main will, you could make additions to it by another document known as codicil attached to the will. Where the testator is illiterate or blind, a trustworthy person should read over the will he has dictated to be made, and when he approves of it, it should be written at the foot of the Will that the contents were read over to the blind or illiterate person in a language he understood, before making his signature or mark.
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Without any such statement, the will is invalid. You could attach documents mentioned in the will, and, when done, deposit it at the court nearest to you. Normally, most deposits are done at the High Court.
Executors
A very essential requirement in a will is that of executors who would carry out your intents in the will. They should be two; in the event of one dying, the other would function. The executors should be trustworthy persons, educated and relatively mature persons. An executor could also be a witness of the will.
Let’s go on. You are dead; the executors take over. What must they do?
The first thing to be done is for the executors to take a probate; this is obtained from the court. The probate is a legal document that gives them power to bring the intents of the testator into being. Without a probate, anything done on the will by the executors is invalid.
In executing the will, it is advisable for the executors to put matters affecting beneficiaries into writing, adding copies of the probate with the will. The letters testify to the sincerity of the executors in carrying out the work entrusted to them.
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. Besides, he must trace, if he knows, all properties alleged to be owned by him.
A very important aspect of the work that most executors do not know is that immovable property such as land and houses must be vested in the beneficiaries. A document transferring the devised property to the beneficiary cloaks the beneficiary with the power of ownership, and he must register same with the Lands Commission. He can then deal with it as he pleases, and go to court to defend it from a trespasser.
In the court
Simple as the procedures outlined above may appear, cases in our courts show that complications do arise. Let’s enter the courtrooms to see how the courts dealt with issues on Wills.
The case of In Re: Allotey v Otoo [1981] GLR 393-397, shows that whereas the court has power to make provision for dependents not adequately catered for in a will, it has not the power to alter nominations made in a gratuity of a pensioned officer, because gratuity is not part of a person’s will. You cannot go to court to ask that nominations (SSNIT benefits) must be altered to take others on board because they are children/spouse of the deceased. What one can do is to ask the court to look at the estate of the deceased and make provision for the upkeep of say children or wife, not expressly stated in the will.
It is heartening to know that executors are not disqualified from applying to the court for grant of probate of a will on the ground that they are beneficiaries under it (In Re: Arthur (Deceased) Abakah and Anor. v Attah-Hagan And Another [1972] 1 GLR 435 – 448). This means a person opposed to an executor cannot go to court and argue that because the executor is also a beneficiary, his interest in the will must be expunged. No!
Conney v. Bentum - Williams [1984-86] 2 GLR 301-318 establishes three important principles affecting wills.
1) Unless a will has been admitted to probate, it has no legal effect.
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2) A beneficiary of an estate must have the property vested in his name to have legal power.
3) After the vesting assent, the property must be registered with the Lands Commission to have legal validity. Thus, if you sell your property willed to you without observing the procedures above, your deed is null and void, and any buyer has bought thin air!
In circumstances where the executor is dead, and there is none else, the successor of the executor shall be the customary one who will then apply for Letters of Administration with will annexed, and probate would be granted by the court.
In Re:Yena, Deceased [1960] GLR 195-201). Where a will is made outside Ghana, but it is valid according to the internal laws of the country where the testator lived, it shall be given effect in Ghana. (In Re:Lartey (Deceased); Lartey v. Affutu-Nartey [1972] 2 GLR 488-501).
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Where a will is not properly witnessed by two witnesses being present together, in each other’s presence, and one of them denies being present, the court would hold the will invalid; and where it is also disputed that the signature of the testator is not genuine, any other document that shows the real signature of the testator could be used to show invalidity of the will (In Re: Essien Alias Baidoo (Decd.); Essien v. Adisah and Others [1987-88] 1 GLR 539 -547 CA).
When you decide to make a will, please consult a Lawyer.
Writer’s E-mail: akwesihu@yahoo.com