Will: A Pre-condition for Death or a Doctrine of Equity?

Introduction

“In those days Hezekiah [King of Judah] became sick and was at the point of death. And Isaiah the prophet, the son of Amos, came to him and said, “For the LORD says, ‘set your house in order and prepare a will, for you shall die; you will not live.” Biblically or Scripturally, this quote is taken from the book of Isaiah 38:1. It is, however, imperative to note that, the law that deals with will has its origin firmly rooted in the bible. It will also not be out of place to mention that, God in his infinite wisdom sanctions and approves law of will as we have it today in our system of inheritance. In other jurisdictions, a will can be either primogeniture or ultimogeniture. Primogeniture, simply means preference in inheritance that is given by law, custom, or usage to the eldest son and his issue. On the other hand, ultimogeniture is the preference in inheritance that is given by law, custom, or usage to the youngest son. In exceptional cases, primogeniture may prescribe such preferential inheritance to the line of the eldest daughter. However, the motivation for such a practice has usually been to keep the estate of the deceased, or some part of it, whole and intact.

Definition of Will

A will may be defined as a declaration in a prescribed manner of the intention of the person making it with regard to the matters which he wishes to take effect upon death or after his death. Under the Wills Act, 1971 (Act 360), no classic or snapshot definition of will has been given. However, section 1 of Act 360 goes ahead to talk about the power to make a will. (1) A person of or above the age of eighteen years may in writing and in accordance with this Act, make a will disposing of the property

(a) of that person, or

(b) to which that person will be entitled at the time of death, or

(c) to which that person may be entitled after death.

Origin and History of Will

From historical antecedents, the first use of the Will as we know, can be traced back to ancient Greece and Rome. These documents were used to transfer possessions between deceased male citizens and their heirs. They were most commonly used by citizens without children or relatives. The history of Wills in English (England) law is a fascinating journey that spans many centuries.

Wills, also known as testaments have played a crucial role in the determination of how a person’s property and assets are distributed after their death.

An Overview of the History of Wills in Britain

1. Ancient Roots: The concept of Wills has ancient origins, dating back to Roman times. The Romans had a system of Wills that allowed individuals to dictate how their property should be distributed upon their death. This concept gradually made its way to Britain during the Roman occupation.
2. Anglo-Saxon Era: In early England, during the Anglo-Saxon period (circa 5^th-11^thcenturies), Wills were informal and primarily oral in nature. Land and property were often passed down through customary rules, and individuals had limited control over estate’s disposition.
3. Norman Influence: After the Norman Conquest of England in 1066, the legal system underwent significant changes. Feudalism became prominent, and the control over land and property was tightly regulated. Wills were still informal and often oral, but there was a growing recognition of the importance of written documents to ensure the deceased’s wishes were carried out.
4. Statute of Wills (1540): One of the most pivotal moments in the history of Wills in England was the passage of the Statute of Wills in 1540 during the reign of King Henry VIII. Henry VIII was known for his liberal approach to marriage and with modern estate planning as it is and the increase in blended families it’s easy to see why King Henry wanted a little more control over the estate planning process. The statute he introduced allowed individuals to dispose of their land through written Wills.
5. Development of Formal Wills: By the late Middle Ages, written Wills began to take hold in England. The Church played a significant role in Will-making, as people sought to ensure the salvation of their souls through charitable bequests (to the Church). Formalities and requirements for creating valid Wills started to emerge.

Testamentary Capacity

Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. However, if the person making the Will (testator) lacks testamentary capacity at the time that the Will is executed, the Will is invalid. The test for capacity to execute a valid Will is based in case law.

Personal Capacity

• To be able to make a valid will in Ghana, the testator must be at least 18 years old, unless the person is a member of the Armed Forces.In re Sackitey (Decd); Dzamioja alias Ashong v Sackitey and Another [1982-83] GLR 1196. It is important for the validity of a Will that the testator should be of a sound mind, memory and understanding. In other words, the testator must be of a sound disposing mind, so that he may possess a sufficient capacity to deal with and appreciate the various dispositions to which he is about to affix his signature. Importantly, a subsequent insanity, however, cannot revoke a will already competently executed.

Animus Testandi

Also, it is sine qua non to note that, there must exist at the time of making the Will, an intention to make a will or the animus testandi.

These are:

1. The testator possesses a sufficient mental capacity to understand and appreciate the nature of the act in which he is engaged, i.e. he must know that he is making a testamentary disposition.
2. b) The testator must be free from any vitiating mental disorder;and
3. c) The testator must be acting in the free exercise of a genuine choice in making the Will.

Statutory Provision

Under section 1 of the Wills Act, 1971 (Act 360), it is provided that (1) A person of or above the age of eighteen years may in writing and in accordance with this Act, make a will disposing of the property

(a) of that person, or

(b) to which that person will be entitled at the time of death, or

(c) to which that person may be entitled after death.

Who Cannot make a Will?

• Under section 2 of the Wills Act, 1971 (Act 360), it provides that, (2) a person suffering from insanity or infirmity of mind so as to be incapable of understanding the nature or effect of a Will does not have capacity to make a Will during the continuance of that insanity or infirmity of mind.However, it must be noted that, such a person can make a Will during the lucid intervals. In CARTWRIGHT v CARTWRIGHT (1791) 1 PHIL. 90 It was stated obiter that if a testator suffering from mental illness makes a rational will without assistance, that constitutes good proof of a lucid interval. Banks v Goodfellow (1870) LR 5 OB 549 at 569. In that case, the court said the following conditions must be met:
  1. that the testator is aware that he is making a testamentary disposition of his assets;
  2. That he has his property in mind;

• That he has the beneficiaries in mind;

1. That the manner of distribution among the beneficiaries is determined by him; and
2. There must not be any insane delusion or abnormal behaviour.

Nature of a Will

• A will is a document(s) about testamentary intention which have no effect until the maker dies – A-G v. JONES & BARTLETT(1817) 3 PRICE 368
• Although a testator may express his intentions in different documents, the Court will consider all as constituting one – DOUGLAS-MENZIES v UMPHELBY (1908) AC 224.If there are two provisions of the Will. One to take effect on a testator’s death and the other before the testator’s death, then the latter will be severed from the Will – DOE D. CROSS v CROSS (1846) 8 QB 714.

Major Identifiable Characteristics of a Will

1. Declarations in a will are intended to take effect upon death.
2. The will takes only effect on death.
3. Until death occurs, a will is only ambulatory in nature.
4.   It is always revocable.

Types of Will

Basically, there are three (3) types of Will. These are:

1. Joint wills
2. Mutual wills and
3. Conditional wills

Donatio Mortis Causa

This means a gift made because of death and not necessarily a deathbed gift.

Subject matter of donatio mortis causa includes all property apart from

1. Cheques drawn by the donor (RE BEAUMONT)
2. Promissory note (RE LEAPER (1916) CH. 579)
3. Land – in DUFFIELD v ELWES (1827) 1 BLI 497, the House of Lords held that it could not form the subject matter of a DMC.

However, in SEN v HEADLEY (1991) 2 All ER 636, it was held that for the purposes of a DMC, land should not be treated any differently from other property.

Formalities of a Will

The law of wills in Ghana presently is governed by the Wills Act, 1971 (Act 360).  Prior to this statute, the Wills Act, 1837 of England and other relevant statutes were applicable.

Generally, a will must be made to conform to a prescribed form.  Under Section 2 of the Wills Act, 1971 it is required that a will must be in writing, it must be signed at the foot or end of the document by the testator or by someone at his direction and in his presence and it must be witnessed by at least two witnesses.

Exceptions to Formalities of a Will

The only exception to this rule is that of members of the Armed Forces ‘while engaged on active service’ who may make wills without compliance with the Wills Act, 1971.

These are referred to as privileged wills under section 6 of the Wills Act, 1971.

Gifts Inter Vivos

Gift inter vivos simply means a type of conveyance or advancement administered by a donor to a done and taking effect during the lifetime of the donor. Imperatively, a Will is distinguished from a gift inter vivos (a) as regards the time when it takes effect, and (b) as regards formalities. Although a future interest can be conveyed inter vivos, a gift inter vivos generally takes effect forthwith; but a gift by Will takes effect only on the death of the testator. Until the death of the testator, the gift is of no effect.

The formalities outlined supra for a Will such as writing, signature and attestation are not necessarily applicable to gifts inter vivos. The formalities of a gift inter vivos depend on the nature of the property and are various. In the Goods of Morgan. In this case, the deceased executed three deeds of gift, not to take effect before his death, where he conveyed all his property to trustees for the benefit of his three children. Held: It was held that the deeds of gift amounted to Wills of which probate should be granted.

Should Will be considered as a ‘Death Warrant’?

According to Collins Dictionary, a death warrant is an official document which orders that someone is to be executed as a punishment for a crime. In the ordinary understanding of Will, a substantial number of Ghanaian people view and understand Will making as death warrant. It is believed that, as soon as a person makes a Will, he is near to his grave. In those days Hezekiah [King of Judah] became sick and was at the point of death. And Isaiah the prophet, the son of Amos, came to him and said, “For the LORD says, ‘set your house in order and prepare a will, for you shall die; you will not live. (CF Isaiah 38:1). Carefully reading the scripture supra, the ordinary interpretation given to it is that, one makes his Will when he is about to die or as soon as one makes his Will, death follows immediately. Therefore, it will not be a mistaken impression held by someone that, a person signs his ‘death warrant’ as soon as he disposes of his property through a Will.

Some Inexplicable Impressions Held by the Ghanaian People in Will Making

Prevalently, quite a number of Ghanaian people are of the mistaken impression or view that, those who make a testamentary disposition to dispose of their property in our families or society die prematurely or untimely under some mysterious conditions or ways. It is, however, believed that, those who makes Wills are killed either through spiritual means or conscious or intentional means by the beneficiaries of the properties of the testator. In fact, among the Ashantis, they have a language or expression, ‘wofa reb3 wu ama m’adi ade3’. To wit, uncle is going to die for me to succeed him. This, of course, talks about the matrilineal system of inheritance in Ghana. Also, it is believed that, in marriage, as soon as the wife realizes that, the husband has Willed his property to her, then, she starts killing the husband slowly by whatever means possible.

Why many Ghanaian People are not Interested in Making a Will

A substantial number of the Ghanaian people are not interested in making a Will due to some of the following reasons:

1. Fear of untimely death.
2. Lack of education.
3. Fear of cost associated with it (legal service fees).

Does Will satisfy the Law of Equity at all?

In the context of jurisprudence, Will is a common law doctrine or principle. However, it is instructive to note that, before the advent of the English Common Law at the shores of Gold Coast (now Ghana), our forefathers practiced Customary Will otherwise known as ‘Samansiw’. Under the ‘Samansiw’ the testator could voluntarily convey the good or interest in his bona fide property to whoever he so wishes and desires. This was done with key family members present during the conveyancing where the beneficiary will then accept it and offer a drink ‘nsa’ (a bottle of Schnapps) to show appreciation to the donor or testator.

The Law of equity teaches about something that is fair and just. Equity ensures that, no party is cheated or wronged in any form or shape. However, zooming in to the question of whether or not Will satisfies the law of equity, the answer is YES. It is instructive to note that, will serves the following benefits or reasons:

1. Offer fair treatment. In most cases, will offers some level of fair treatment to the beneficiaries. This is so without taking into consideration the size of the property given to the various beneficiaries involved. In fact, the question of interest is, at least each one of the beneficiaries has been given something.
2. Offer access. Will also tries to offer some access to the beneficiaries. In fact, by being given a share of the testator’s property, you equally have an access to enjoy the good or interest in the property.
3. Offer of opportunity. Conveying the interest or good in property to the beneficiaries of a will is also considered as an opportunity. Will puts the beneficiaries in charge of managing the assets and property of the deceased. Equally, the assets and property of the deceased can be enjoyed by the beneficiaries.

Other Benefits

1. Save time and money for your loved ones. It is the case that, almost all estates have to go to probate court to start the legal process overseeing the assets. But when you don’t have a Will, the court process-known as intestate administrationcan get really complicated.
2. Determine who manages your estate. Indispensably, deciding who will handle your estate is a great reason to have a will. When you write a will, you become a “testator” and have the opportunity to nominate an “executor.” This is the person who will be in charge of wrapping up all your affairs.
3. Decide who gets your assets and property-and who does not. Mostly, people know that a will lets them decide who will get their property. As the testator, you can name people as beneficiaries for specific assets.
4. Reduced potential family disputes. If you have complicated family dynamics, there’s a good reason to have a will. When you die without a will, your family will have to guess at what your final wishes were. And the chances are that, they won’t always agree.
5. Provide funeral instructions. You may not want to think about your own funeral. But if you do think about it now, and leave instructions with your will, you can lessen the burden on your loved ones after you are gone.

Intestacy and its Effects

According to Sarbah, in contrast to the systems of inheritance mentioned above, under Ghanaian Customary Law, from the infancy of society, when an individual member of the society died intestate, his descendants or kindred in blood were the heirs and succeeded to his property as of rights and liabilities of every kind. See LARKAI v AMORKOR (1933) 1 WACA 323 at 329

Section 48 of the Marriage Ordinance of 1884 and its implications on the family of an intestate is extremely instructive. See also PNDCL 111 and Prof. Ekow Daniels’ article on Recent Reforms in Ghana Family Law. Under the intestate succession law which came into force on 14 June 1985, the rights to intestate succession is statutorily regulated. As a statute, this law supersedes and reforms the rules of customary law. Its effect is a radical alteration of the existing customary, especially as it affects members of the matrilineal communities in Ghana.

Intestacy is the state of dying without a will. If a person dies without a will they are said to have “died intestate.” The estate of a person who has died intestate goes through probate court. The state’s intestacy rules will determine who will inherit the decedent’s assets. Typically, the takers are relatives of the decent. In order to take under intestacy, the person must survive the decent.

Under the P.N.D.C.L 111 (Intestate Succession Act, 1985), s.1 (1) On the commencement of this Act, the devolution of the estate of a person who dies intestate on or after the commencement shall be determined in accordance with this Act subject to subsection (2) and the rules of private international law. Section 2 (1) A person dies intestate under this Act if at the time of death that person had not made a will disposing of the estate of that person. (2) A person who dies leaving a will disposing of part of the estate of that person shall be deemed to have died intestate under this Act in respect of that part of the estate which is not disposed of in the will and accordingly this Act shall apply to that part of the estate.

Devolution of household chattels

Apparently, section 3 of P.N.D.C.L 111, provides that, where the intestate is survived by a spouse or by child or both a spouse and a child, the spouse or the child or both of them, is or are entitled absolutely to the household chattels of the intestate. In Mavis Biribi v Mohammed Gariba. Facts: On 12^th October, 2019, one Yakubu Gariba, died intestate at the 37 Millitary Hospital, Accra. The deceased was survived by a wife, the plaintiff herein, and four minor children aged between 8 years and one and a half years old at the time of instituting the action. The High Court, Tema, on 13^th February, 2020, granted Letters of Administration to the plaintiff, in her capacity as the surviving spouse of the deceased and one Mr. Samuel Adorku in his capacity as the customary successor to administer the estate of the deceased. The plaintiff contends that the estate of her late husband has been equitably distributed in accordance with the Intestate Succession Law, 1985, P.N.D.C.L. 111. Held: The court held that the plaintiff proved her claim on a balance of probabilities that the property in dispute devolves on her and the four children of the deceased in accordance with the P.N.D.C.L. 111. Therefore, judgement was entered for the plaintiff.

Devolution of Residue where customary law is inapplicable

Under section 9 of the P.N.D.C. Law 111, the law makes it quite clear that, where a customary law is not applicable to the devolution of that part of the residue which by virtue of sections 5,6,7 or 8, shall devolve in accordance with customary law, that part of the residue shall devolve in equal shares to those beneficiaries otherwise entitled to share the residue under the relevant provisions of this Act.

Recommendations

As a crackerjack student of Law of Succession, I deem it enormously fit to come out with the following recommendations as regards to making of a will in Ghana:

1. Massive legal education must be mounted to drum-home the importance of will in the Ghanaian society to specifically create awareness about will.
2. Reduced legal fees or charges by the lawyers who help their clients in preparing testamentary dispositions (will).
3. Diffusing the ‘evil-thought’ of you will die early when and if one makes a will.
4. In making a will, the testator must ensure that all children below the age of 18 should be catered for in the will to forestall possible or imminent hardship in the future.

Conclusion

Conclusively, I want to conclude my article by reiterating the fact that, will (testamentary disposition) in itself is not a pre-condition for death and that it should be seen in such light by the Ghanaian people who are yet to make or write a will to dispose of their property. Will is also used to save substantial money and time. When one makes a will (testator), the management of his estate is securely assured and his surviving children (those below 18 years) and a spouse are also taken care of.

By Justice Reuben Adusei (BSc. Economics & Business Administration)

(a Final year student of KAAF University College, Accra (LL. B)