In Ghana, when a person dies without executing a valid will during his lifetime, the person is said to have died intestate. On the other hand, where a person dies having executed a valid will during his lifetime, the person is said to have died testate.
In Ghana there exists two major forms of Wills, namely the statutory testamentary disposition and the customary testamentary disposition. This article seeks to throw more light on the legal processes involved in the administration of estates and how assets are distributed amongst beneficiaries.
Probate and letters of administration.
After a person dies testate, their Will is admitted to probate. This is essential for the deceased person’s intentions expressed in the Will to take legal effect. On the other hand, after a death without a valid Will (intestate), the Intestate Succession Law 1985, PNDC 111 determines how the deceased person’s estate, both movable and immovable is distributed amongst the surviving spouse, children, parents and external family members of the deceased.
Distribution of the estate of a person who died testate can be administered only after there has been an application by the deceased person’s personal representative (executor) to the court for a grant of probate and it has been granted by the courts. In the event that the testator does not appoint an executor, the executor is unavailable, an infant or does not appear to take out probate, the court shall make a grant of letters of administration with Will Annexed to the residuary or contingent legatee, devisee, personal representative or creditor of the deceased person.[1]
The distribution of the estate of a person who died intestate shall be carried out by the administrator of the estate after being granted letters of administration. The administrator shall be appointed by the members of the deceased’s family and shall administer the estate of the deceased in accordance with PNDCL 111.
At CQ Legal, we have an experienced team who are on hand to help you apply for the grant of probate or letters of administration in the courts of Ghana.
The processes to be followed to obtain a grant of probate or letters of administration are collectively provided for in Order 66 of the High Court Civil Procedure Rules, 2004 C.I. 47. For the purposes of this article I will briefly outline the processes for the grant of probate and letters of administration:
- Application: An application is made to the court with jurisdiction over the area the deceased had a fixed place of abode. Where the deceased had property within the jurisdiction of more than one court, then the application shall be made to only one of the courts regarding all the properties. For the grant of probate, the application is made by the executor whereas in an intestacy, it is made by representatives of not more than four (4) of the beneficiaries of the deceased person’s estate.
- Documents required: The application is accompanied by;
- An affidavit sworn by the applicant;
- A declaration i.e. Form 22, of the value of the property of the deceased person;
- A copy of the death or burial certificate of the deceased person or both; and any other supporting documents requested by the court.
The court shall ascertain the proof of identity of the deceased, the time and place of birth of the deceased.
- Notice: For the grant of probate, the court can act or upon receiving an application give notice to the executors to come in and prove the Will or renounce probate. If renounced, the court shall grant letters of administration with Will Annexed. Furthermore, such notices allow person’s to file a caveat. In relation to the grant of letters of administration, notice is given to the registrar of every Court with jurisdiction in areas where the deceased person’s property may be situated. This notice issued may last until the court is satisfied that no caveats have been filed in another court.
- Preservation of property: Until the property is dealt with according to the law, the court will put a seal on the property and take possession of it.
- Notice of grant: To prevent fraud or an error, the court shall not grant probate or letters of administration unless notice is given. After the grant of probate, no notice is given by the court. Where the grant relates to intestacy, notice by the court must be given for a period of 21 days to all persons entitled to a share of the estate of the deceased person by virtue of the Intestate Succession Law 1985, PNDC Law 111. This notice is to afford beneficiaries, or certain affected persons the chance to file a caveat where the testamentary document was not executed in accordance with the Wills Act 1971; where the estate stated in the testamentary document did not belong to the testator; or where in the case of an intestacy the estate or portions of same did not belong to the intestate.
What happens when a caveat is filed?
When a caveat is filed, the court sets a date for hearing where parties are to agree on the beneficiary who should be granted probate or letters of administration. In the absence of an agreement, the court discretionarily determine who is entitled to a grant summarily or may order that the applicant issue a writ within fourteen(14) days from the date of the order, in order for the court to determine who is entitled to the grant of probate or letters of administration.[2]
How the estate is devolved on beneficiaries after grant of probate or letters of administration.
Once granted by the courts, the executor, who shall have the capacity to sue and be sued in the interest of the whole estate of the deceased shall have the legal mandate to make devolutions through the execution of a vesting assent in favour of the beneficiaries and devisees under the will.
This shall have legal effect through the execution of a vesting assent.[3] The law posits that a vesting assent clothes beneficiaries with the capacity to sue and be sued in the interest of the estate of the deceased person and in the absence of same, beneficiaries have no such locus standi. However, at equity, the beneficiary may mount such action based on spes successionis I.e. his expectant interest in the estate.[4]
In relation to death intestate, after the grant of letters of administration, the estate should be administered in accordance with the Intestate Succession Law 1985, PNDC 111 which determines how the deceased person’s estate, both movable and immovable is distributed amongst the surviving spouse, children, parents and external family members of the deceased.
About CQ Legal
CQ Legal & Consulting is a law firm based in Accra, Ghana that serves the needs of a broad range of corporate and private clients.
Our team of lawyers specialise in Probate and Administration of estates in Ghana, helping many individuals through what is a sensitive and complex process.
We pride ourselves on our excellent service and extensive understanding of the legal systems, cultures, economic and regulatory environment in Ghana and sub-Saharan Africa. Total client satisfaction is always our goal and we see ourselves as partners with our clients in achieving their objectives.
Akosua A. Asiedu is an Associate with CQ Legal and Consulting and has an interest in Family Law practice Intellectual Property Law and Corporate Law.
[1] Enoch D Kom, Inheritance, Marriage, And Divorce (Asempa Publishers, Christian Council of Ghana 1993) pp 45-46.
[2] Order 66 rule 11, High Court Civil Procedure Rules, 2004, C.I. 47.
[3] Section 96(1) of the Administration of Estates Act, 1961(Act 63).
[4] Yaw Vs. Appenteng and Another (J4/17/2008) [2011] GHASC 33 (23 November 2011).
Author
Thanks for the explanation.
Our father passed on 20 years ago and our mother 4 years now. My sister and I was given the administration of the estate since our mother passed on. I found out we have a trustee and an executor had been assigned since 2018. Till today I have been kept in the dark by my siblings, am for court today in the Probate and administration for a meeting what shall I do
M