WILLS (Answering Exam Questions)

Question 1

How do you start off an Wills Question?

Answer 1

In Ghana, Wills are governed by the Wills Act, 1971 (Act 360). A will is a document properly executed by a person having testamentary capacity containing that person’s post mortem wishes and which has not been revoked. A will is an intentional document and as such we refer to the intention of the testator and ensure that effect is given to it. We give strict interpretation to wills when the testator did not give any contrary intention. According to Section 7(1) of the Wills Act, unless a contrary intent appears from the will, it shall take effect as if it had been executed immediately before the death of the testator.

Question 2

Wills Answer - Part 2

Answer 2

Per In Re Yena (deceased), a will is also ambulatory in nature and will only come into effect on the death of the testator. It may be changed several times before the death of the testator. Wills must meet the formalities as to writing, execution and attestation in order to be valid. Section 1 of the Wills Act, a valid will is executed by a person of eighteen years and above, of sound mind and disposition and who understands the nature and effect of a Will is competent to make a Will. A Will shall be made in writing and in accordance with the Wills Act and may be typed or handwritten. A Handwritten will is also known as a holographic will. A testator may devise his property that he is entitled to at the time of his death and or the property that he may be entitled to after his death.

A will is a voluntary dispostion, therefore a will may be declared void where it is proved it was made by testator under fraud, duress or undue influence. Also, regardless of whether a testator states it is revocable, or that that testator has contracted not to revoke a will, it is still revocable!

Question 3

Wills - Part 3 (Residuary Clause)

Answer 3

When the disposition is declared void, it may fall into residue if the will has a residuary clause. Where the will does not have a residuary clause, it shall fall into intestacy and shall be distributed according to the rules found in the Intestate Succession Act (PNDCL 111). A residuary clause in the Will of a testator covers all the properties of the testator that were not mentioned in the will and also any lapsed and void dispositions made by the testator unless there is contrary intention.

Question 4

Part 3b - Signatures of a WIll

Answer 4

Per S2(1) of the Wills Act, a Will shall not be valid unless it is signed by the testator or by any other person at the direction of the testator in the presence of the testator. A will must be signed by a testator with the intention of giving effect to it. The signature of the testator shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time. A witness to a Will can be any person who is competent to be a witness in civil proceedings other than a blind man. Where the will is signed by the testator, the testator’s signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at that time. Per Section 2(3) of the Wills Act, the witnesses shall attest and sign the Will in the presence of the testator. The witnesses however do not need to be present and sign at the same time in the testator’s presence. The witnesses are not required to know the contents of the Will, but they must be capable of attesting to a legal document. Where a beneficiary in a will is one of the two attesting witnesses, any disposition made to that attesting witness by the testator shall be void.

Question 5

Wills - Part 4 (Sections 8 & 9) - Lapse

Answer 5

Per Section 8 of the Wills Act, A disposition made by a testator to a beneficiary under a Will shall lapse where the beneficiary predeceases the testator. There is however an exception to this rule. According to Section 9 of Wills Act, where the beneficiary was a descendant of the testator, the disposition shall pass to the descendants of the beneficiary unless there is a contrary intention in the will.

Question 6

Part 4(b) - The Presumption Against Survivorship (PAS) or the Commorientes Rule

Answer 6

Where Testator dies simultaneously with beneficiary, and it is uncertain who died first, beneficiary is deemed to have survived the testator - that is the testator is presumed to have died first, unless the testator expresses a contrary intention.

Also with spouses, where it appears death was simultaneous, the younger is deemed to have survived the older WHERE THE OLDER DIED INTESTATE.

Question 7

Wills Part 5 (Who is a descendant?)

Answer 7

A descendant of the testator means a child or grandchild of the beneficiary who predeceases the testator and leaves behind issue. Per s18 of the Wills Act (Act 360), an adopted child will be considered as the child of the person who adopted him or her and as such will also be descendant. This does not include nieces and nephews of the beneficiary unless the testator considered the niece or nephew as a child and was responsible for the child. If the beneficiary died without leaving any descendants, the property shall lapse and fall into residue or intestacy if there is no residuary clause.

Question 8

Part 7 (Section 38 of the MCA, 1971 (Act 367))

Answer 8

Under Section 38 of the Matrimonial Causes Act, Act 367, a disposition of property made by a spouse in the spouse’s will to the other spouse shall lapse upon termination of the marriage under the act unless a contrary intention is established. Therefore, in the case where a testator makes a disposition to a spouse and states that a property is to be given to the spouse and should not lapse upon termination of the marriage, the disposition shall not lapse where the marriage is terminated before the death of the testator.

Question 9

Part 8 (Reasonable Provision)

Answer 9

Under Article 22(1) of the Constitution 1992, a spouse shall not be deprived of reasonable provision out of the estate of a spouse. However, this may only be invoked by a surviving spouse. Reasonable provision would not be made where it is proved that during the lifetime of the deceased spouse, he or she made adequate provision for the surviving spouse.

Question 10

Wills Answer - Part 9 (Simultaneous Death)

Answer 10

Simultaneous Deaths (add where it implies): In the case where two or more persons die simultaneously such that it is impossible to determine who died first, it is presumed that the older predeceased the younger person. According to Section 34 of the Evidence Act (Act 323), this is a rebuttable presumption. Under Section 7(7) of the Wills Act, where a beneficiary and a testator die simultaneously, the testator would have deemed to have predeceased the beneficiary. Under Section 15 of the Intestate Succession Act (PNDCL 111), the younger spouse shall be deemed to have survived the older spouse where they both die simultaneously such that there is no way to determine who predeceased the other.

Question 11

EXAM QUESTION: What would be the legal effect if a customary marriage is dissolved in accordance with custom and not under the Matrimonial Causes Act?

Answer 11

This matter should be addressed by the legislature to ensure uniformity in the law.

On the other hand, the Courts may use purposive interpretation to extend it to customary marriages dissolved extra-judicially. This is one of the lacuna in the law which must be filled by the Courts. A strict constructionist approach to interpreting Section 38 of the MCA for a divorcee whose marriage was dissolved extra-judicially to benefit under a will where no contrary intention is expressed would render the meaning absurd.

Question 12

Reasonable Provision as an Exception to the Court not interfering with Wills (Section 13 of the Wills Act, 1971 (Act 360)

Answer 12

Generally where a will is made in accordance with the wishes of the testator, effect should be given to it. However, a court can interfere with a Will made by the testator where the testator did not make reasonable provision whether in life or by his Will for the maintenance of the testator’s father, mother, spouse or child under eighteen (18) years.

An application to the High Court to make reasonable provision to the above-named persons must be made within three (3) years from the date on which probate is granted.

Apart from provisions in section 13 of the Wills Act, the court cannot interfere with a valid will of a testator, otherwise the Court would be defeating the intention of the testator.

Question 13

Cases in Wills:

Turker v. Harrison

Answer 13

In the case of Turker of Harrison, the Court held that there is no presumption that anyone who is not named as a beneficiary of a will shall benefit from the will. In Ghana the exceptions to this decision are Section 13 of the Wills Act, 1971 (Act 360( and article 22(1) of the 1992 consitution.

Question 14

Definitions:

What is a Codicil?

Answer 14

This a Will that alters or adds to an existing will

Question 15

Definitions:

What is Probate?

Answer 15

This is an order ofa court certifying the validity of the will and authorizing the executor to administer the estate, ie give legal force to the Will

Question 16

Cases: Cartwright v. Cartwright

Answer 16

In Cartwright v. Cartwright, it was held that a person of unsound mind or a person who suffers from infirmity of mind can still make a Will provided the Will is made during a LUCID INTERVAL and he or she understands the nature and effect of a will.

Question 17

Cases:

In re Okine: Dodoo v. Okine

Answer 17

In proving the due execution of a will, the burden is on the propounder of the will to prove that the competent testator executed the will freely and voluntarily.

Question 18

Cases:

In Re Dadzie; Dadzie v. Addison (ShareDaddison)

Answer 18

A testator in his will gave parts of the proceeds fro mthe hotel to some beneficiaries in “shares”. At the time of his death, the hotel had been converted into commercial residence. The High Court construed “shares” as in the proceeds form the hotel to “shares” as income from commercial proceeds.

Question 19

Incorporation of Other Documents in a Will

Answer 19

A Will shall not incorporate another document unless that document was in existence at the time the Will was executed. A document incorporated in the will should be sufficiently described in the WIll to avoid ambiguity. However the document need not be in writing, for eg video or audio tape can be incorporated into a Will.

Question 20

Can a will be altered and still be valid?

Answer 20

A will validly made may be altered in accordance with the Wills Act, 1971 (Act 360). But any alteration made to a Will shall not have any legal effect unless it is made in accordance with the Act. A will therefore may be altered if it is SEPARATELY executed in a manner required for the execution of a Will, or made valid by the re-execution of the Will or by a subsequent execution of a codicil.

Question 21

Armed Forces Will

Answer 21

Any member of the Armed Forces of whatever age to make a Will while engaged on active service. An AF will remains valid even when the person is no longer a member of the AF service. A beneficiary under the will cannot attest to a AF will unless it would be valid without the attestation of said witness.

Gattward v. Knee

Question 22

What is Active Service defined as for the purposes of the Armed Forces Will?

Answer 22

Active Service is defined by Section 114 of the Armed Forces Act. 1962 (Act 105) as:

a. Service in operation against an enemy of in a foreign country in operations for the protection of life or property or relating to the military occupation of a foreign country.
b. service in operation for the preservation of public ordr
c. Relief in case of emergeny
d. Service for any other purpose appearing to the President to be expedien

Question 23

Where can an Armed Forces member make an Armed Forces will?

Answer 23

Any armed forces member on active service is eligible. Whether in field, baracks, or sleeping at home PROVIDED the place is in connection with an act amounting to active service

Question 24

What are the forms of an Armed Forces Will?

Answer 24

3 different types of AF will:

1. Written Form, unattested, and material provisions and the signature are in the Handwriting of the testator.
2. Written form, attested by 1 witness (immaterial if in hadwriting of T or not)
3. Oral Will made in presence of 2 witnesses.

Wills Act s 6(b), (b) & (c)