DYING WITHOUT A WILL: When RIP means “Return If Possible!”

When Mrs. Thompson lost her husband, it was as if her world had come to an end. When she met him 25 years ago, he had just left middle school. She had no formal education at all. Together, they worked hard and invested in his education. He acquired his PhD three years before he died. A hard working trader, Mrs. Thompson made a greater contribution to the assets they owned. However, her husband died without a will and her grief was compounded by her husband’s family’s greed. They insisted on an equal share of the deceased’s property. On the instruction of the family head, the funeral donation was divided into three equal parts – one for Mrs. Thompson and the children of the man, one for the parents of her late husband and the rest went to the other family members. The same proposition was made regarding her late husband’s property. This left Mrs. Thompson devastated because in their most difficult moment, no member of her husband’s family was even prepared to give them a loan. And these are the very people who were to eat from her sweat. To her, it was unfair and unjust.

Fortunately, for Mrs. Thompson, a neighbour whispered to her that the the government had a law that would protect her interest and that of her children. He was referring to the Intestate Succession Law, 1985 (P.N.D.C.L.111). Mrs. Thompson’s joy in the law was, however, short-lived when she heard the details of the law. After her husband died, a woman surfaced with a set of 19-year old twins and claimed that her late husband was the father of the boys. The boys were a carbon copy of Mr. Thompson so no member of the family raised any objection. Not even Mrs. Thompson could doubt her. What she could not accept was how she and her children would share the property they had sacrificed and toiled to acquire with these complete strangers, strangers who reminded her of pain and betrayal.

The Intestate Succession Law, 1985 (P.N.D.C.L.111), was enacted to curb the injustices that were generated by the application of the customary laws of intestate succession where women and children were mostly left with either very little or nothing at all when the properties of the deceased were shared. Before this law came into being, the customary succession rules prevailed. A person’s properties were distributed in accordance with the family lineage system he belonged to; whether patrilineal or matrilineal.

Ethnics groups such as the Ewe, the Ga-Dangmes, the Guan, the Buem as well as most ethnic groups of the three regions of Northern Ghana are patrilineal. In this patrilineal family system, children of the deceased are entitled to inherit the man’s properties because they are considered a part of the man’s patrilineal family. The widow, however, is not considered a part of the man’s patrilineal family and so has no right of inheritance to any part of the husband’s properties if he died without a will.

The matrilineal family system, on the other hand, is practised mainly by the Akans, Tampolense and some parts of northern Ghana. Here, the children of the man are not considered a part of the man’s matrilineal family. They have no right to succeed the man’s properties if he dies without a will but they have a right to be catered for by their father’s successor. They also have the right to live in their father’s house but that is subject to good behaviour. As to how that good behaviour is determined, your guess is as good as mine! Here too, the woman is not considered a member of the man’s family and so has no right of inheritance.

It was the need to stop this injustice against women and children that led to the enactment of P.N.D.C. Law 111. In my view, however, this Law has not cured all the mischief presented by the customary laws and the injustice widows and children suffer when the man of the house dies. The law also came with its own set of complications and problems. Fortunately, our lawmakers have realized the many gaps in this law and the need to resolve them. This necessitated the drafting of the Intestate Succession Bill in 2009. As I write, this Bill is in Parliament, waiting to be passed into Law. The reason for its delay in parliament is not difficult to guess. It still has some ambiguous and controversial provisions over which lawmakers, as well as gender activists, are yet to reach a consensus.

Because of the inherent weaknesses in the law and its complications, no one should let the laws of Ghana distribute their properties on their behalf. In other words, don’t die without a will. The PNDCL 111 and its unborn child, the Intestate Succession Bill, are not as friendly as you might think. You cannot trust them in the same way you cannot trust your greedy family head to share your property.  

Weaknesses in PNDC Law 111

Section 3 of the PNDCL 111 provides that the household chattels of the deceased who died without a will shall be distributed to the surviving spouse(s) and the children and they shall all have equal interests in them.  Section 18 defines “household chattels” or movable property to include “jewellery, clothes, furniture and furnishings, refrigerator, television, radiogram, other electrical and electronic appliances, kitchen and laundry equipment, simple agricultural equipment, hunting equipment, books, motor vehicles other than vehicles used wholly for commercial purposes, and household livestock.”

The same section also defines a “child” to include “a natural child, a person adopted under a recognized law or under customary law relating to adoption and any person recognised by the deceased as his child or recognised by law to be the child of the deceased.” This is where the Pandora’s box of misunderstanding opens. How can two wives who are not on good terms agree to use the only vehicle the man left behind? How can the first wife, for instance, agree to sell the car and share the monetary value with the second wife when she (the first wife) contributed in purchasing that only vehicle the man left behind?

The provision also stipulates that all these items shall be given to the spouse(s) and children absolutely. This means they will have unquestionable and equal rights of ownership of the properties and can either distribute them to their successors or even give them out as gifts. How can one agree that the other should give their husband’s most cherished wrist watch to her child, for instance, and not the other woman’s child?

The Intestate Succession Bill has made a provision in clause 6 for the distribution of properties where the deceased left behind more than one spouse. The provision stipulates that 50% is to go to the surviving spouses, 40% to the surviving children, 5% to the surviving parent and 5% in accordance with customary law.

One does not need a prophet to predict confusion here. How will the household chattels, for instance, be shared based on these fractions? Let’s assume the two wives are fighting over their late husband’s car. Are we going to cut the car into two so that each person will take a half?

 Obviously, there will be chaos if this fraction idea is followed. And that means most of the items that were mostly cherished by the deceased that could have been kept by either spouse as memorabilia or even kept by the children would have to be sold to prevent disputes.

In a perfect case scenario, where the man married only one wife but had a child outside the marriage, like Mrs. Thompson who did not even know that her husband had “played an away match and scored a brace,” there may be conflicts as to who will keep what item. The Law has stated that the survivors have full interests in those items.

In Mrs. Thompson’s case, for instance, they had been together for over twenty-five years and she didn’t know her man had some nineteen-year-old twins somewhere. How can this woman share the man’s household chattels with these “strangers?” Would it not be awkward for one of the children to come and ask this widow for the keys to the man’s only car to cruise in town? The Law says the spouse and the children in this case all have absolute interests. Put simply, they all have equal shares in this property. How can they share without any dispute? Can she even have the heart to stand them after the betrayal of the husband and even the woman who introduced herself as the man’s cousin but was apparently warming his bed?

The proposed Bill, however, does not make any amendments to this provision. I guess conflicts on such chattels will go a long way till it gets to the Supreme Court.

Section 4 of PNDCL111 stipulates that where the property involves only one house, the spouse(s) and children shall be entitled to that house and they shall hold it as co-owners. This sounds like a good idea in cases where the deceased and his spouse built their dream house and lived in alone with their kids. It would not even be an issue where the surviving spouse later decides to devolve or give the house to the children.

The problem arises when the deceased had a child outside the marriage. The obvious question is whether the surviving spouse and her stepchild would want to live together and hold interests in that house as co-owners. This argument almost always ends up in court and the ultimate solution will be to sell the house and share the proceeds.

In most cases the intruder, who had a child with the man and who is not recognised by the law, uses the child to indirectly fight for her share in the man’s property. So Mrs. Thompson will end up sharing what she and her late husband toiled to acquire with the woman her husband had an affair with.

Luckily, the Intestate Succession Bill provides in clause 8 that “the surviving spouse is to have fifty percent (50%) share in the matrimonial home and where the spouse has contributed to the acquisition of the matrimonial home, an additional share will be added to the fifty percent (50%) share.” Another problem arises here too. How can it be proven that, indeed, the other spouse contributed to the acquisition of the house? The onus is on the person who alleges to prove. But how can the surviving spouse prove that they contributed, if they did not keep receipts of the building materials they purchased towards the building of the house? Or how can they prove in a situation where the wife rather took care of other responsibilities while her husband channelled all his resources into building the house?

It is in such circumstances that Lord Denning LJ, in the case of Rimmer v Rimmer [1953] 1 QB 63, held that any property that was acquired in the marriage should be shared 50-50 upon dissolution of the marriage. In his reasoning, where a man saved and the woman worked and used her earnings to cater for the family, it was for a common benefit and thus whatever was acquired with the man’s savings belonged to both the man and his wife. This principle was applied by the Court of Appeal in the Ghanaian case of Mensah v Mensah [1997-98] 2 GLR 193, when the court was deciding the ownership of the matrimonial home upon divorce. It seems the 50% idea in the Bill was developed from this principle.

Clause 9 of the Bill, however, provides the surviving spouse with an option to buy out the share of the other beneficiaries. This is where the estate consists of only one house and the surviving spouse contributed to the acquisition of the house. Thus, the surviving spouse has the option to buy out the share of the children. What happens if the surviving spouse does not have the money to do so?

As if that is not enough pain, Section 4 of PNDCL 111further provides that where the deceased left behind more than one house, the spouse(s) and the children are to choose one house and hold it as co-owners. Where there is a disagreement (which almost always pertains) as to which house to choose, the administrator of the deceased’s property shall apply to the High Court for the court to determine which of those houses shall devolve to the surviving spouse(s) and children.

This is exactly Mrs. Thompson’s plight. She paid her two children’s school fees and catered for other needs at home whilst her dearest husband channelled his funds into building houses with the hope of renting them out to generate income for them until he met his untimely death. We can then say she contributed to the acquisition of the property if we are to apply Lord Denning’s principle here. So why is the Law now asking her to choose one of the numerous houses she supported her late husband in building and the worst of it all, to live with “strangers?” She decided to take the matrimonial home where she and her husband lived until his demise and now these twins born out of wedlock are saying they don’t want that house and that they want another. Now the court has to come in. I am sure you can feel her agony too.

Weaknesses in the Intestate Succession Bill

Clause 10 of the Intestate Succession Bill deals with joint ownership of property other than the matrimonial home. A surviving spouse acquires a fifty percent (50%) share in property jointly acquired with the deceased (as in Mrs. Thompson’s case), and an additional twenty-five (25%) share by virtue of being a spouse. Meaning that the rest of the 25% will go to the children and that would be better than what the Law stipulates. Here too there should be proof of joint acquisition.

Assuming that the widow and her children have finally decided on one house out of the lot and his household items have been shared equally amongst themselves, the Law provides in Section 5 that the residue of his properties shall be distributed in the following manner:

·      3/16 to the surviving spouse

·      9/16 to the surviving children

·      1/8 to the surviving parents and

·      1/8 in accordance with customary law

The biggest flaw here is how the rest of the properties can be distributed based on these fractions. Properties such as houses cannot be realistically divided into parts and distributed among these beneficiaries as suggested by the Law. Thus the houses left in the widow’s case cannot be easily distributed based on these fractions if all that the deceased left were houses and cars.

 Clause 12 of the Bill provides that dependant children of the deceased pursing education courses should have their needs met before the properties are shared. If the deceased left behind two children, a 30-year old PhD student and a 12-year old junior high school pupil, whose needs shall be met first if the available resources are limited? The Law unfortunately does not provide for this. And this can be a source of conflict if the children are of different mothers.

The Best Solution

By now you may be wondering what solution I want to give to the many flaws I have identified with the Law and the Bill. I have only one solution. Don’t die without a will. You don’t know when and how you will die so don’t wait to have grey hair before you start thinking about making a will. You may not have the luxury of calling your children to your death bed and telling them who should take what. Making a will does not mean you will die. Wills are not for only men to make. Women can also make wills. You can always amend your will. If all you have today is a single bedroom house, you can make a will. When you finally build a mansion, you can amend the will.

The troubles that come in the wake of dying intestate have ruined many families. Some have led to deaths. You are sure to have “RIP” inscribed on your tomb. We know it means “Rest in Peace.” But if you die without a will, your spouse and children may always visit your graveside and read it as, “Return if Possible.”