Do you want to draw up a will in Ghana? Here are some factors to consider...

 SO YOU WANT TO DRAW UP A WILL?

• WHAT IS A WILL?

A Will is an instrument (a legal document) which contains the wishes of the testator on how his or her self-acquired property is to be distributed and takes effect upon the death of the testator (the maker of the will). 

• WHAT CONSTITUTES A VALID WILL?

In Ghana, the Wills Act, 1971 (Act 360) is the governing law or authority on wills in the country especially on the making of a will, or on the giving of effect to the provisions of a will drawn up in accordance with the law.

Starting from Subsection 1 of Section1 of Act 360, the age requirement of a testator is provided for as follows: “a person of or above the age of eighteen (18) years may in writing and in accordance with this act make a will disposing of property…”. The only exception provided with respect to the ‘Age requirement’ is the members of the Armed Forces while engaged in active service of whatever age as is stated under Section 6 of Act 360; interestingly enough, a will made under this section will still be considered VALID even if the testator ceases to be a member of the armed forces. 

The testator as regulated in Section One (1) can only dispose of property that: belongs to himself or herself; property to which the testator will be entitled at the time of death; property to which that person will be entitled after death. From a careful reading of this provision, we are made aware of the fact that a testator cannot attempt to dispose of property that does not belong to himself or herself in his or her will.

Subsection 2 of Section 1 adds an additional requirement of the testator being “of sound mind and being able to appreciate the nature or effect of a will,” in other words the ‘Compos mentis’ element. Thus, an insane testator will be said to lack the capacity to draw up a valid will and should he or she even succeed in drawing up a will in such a mental state, once this is proved, the validity of such a will, could be successfully challenged.

Notwithstanding, a will or a provision of a will which is ill-gotten through fraud, or obtained under duress or undue influence will also be declared void once proved in accordance with Subsection 3 of Section 1 of Act 360.

Furthermore, a will is required to be in writing and signed by the testator or by any other person at the direction of the testator as stated under Subsection 1 of Section 2 of Act 360.

Similarly, under this section of Act 360, it is provided that the testator is to sign his or her will in the presence of two or more witnesses who are required to be present at the same time. The said witnesses are mainly to see and witness to the fact that the testator voluntarily signed the said will on his or her own volition and under no circumstance are the witnesses to be informed of the contents of the will. After the testator has signed the will, the witnesses who are to be present, are then made to attest to the will in the presence of the other witnesses as well as the testator. A testator must choose his or her witnesses carefully as a witness cannot be a beneficiary under the same will! Any disposition or direction which is made after the signature 

of the testator will be invalid and of no effect. 

In the case of a blind or illiterate testator, Act 360 requires that a competent person is tasked with “carefully reading over and explaining to the said testator the contents of the said will before it is executed” and a further obligation that the above-mentioned ‘competent person’ is imposed to the effect that he or she “shall declare in writing upon the will that he or she had read and explained its contents to the testator and that the testator appeared to perfectly understand the contents of his or her will before it was executed (this is called a jurat clause). In the absence of a jurat where the testator is blind or illiterate, it could affect the validity of the will and accordingly lead to the said will being challenged. 

Also, the testator is required to choose an ‘Executor’ (a person named in the will) mainly tasked with protecting the property of the testator and ensuring that the testator’s just debts and taxes are paid upon his passing and most importantly, that the properties remaining and cited in the will go to the designated beneficiaries as provided for under the will. If an intention to create a Trust is evinced by the testator to make provision for his or her minor children for instance then, a Trustee will also have to be appointed to manage the trust established under the will. The same executors named in the will may also be appointed as trustees.