Intestacy - What Happens When a Person Dies Without Making a Will

Wilma Akuya Osei and Catherine Ama Nartey

"Life asked death, why people love me but hate you?

Death responded; because you are a beautiful lie and I am a painful truth" - Unknown

If your response to our May post on making a will was, “I don’t need to write a Will, after all I have time” – this post should probably make you reconsider. Death is not an easy topic to discuss but if you’ve ever had to deal with someone’s estate without a Will to refer to, it is a conversation you would wish had not been ignored. This post will take us a little deeper into what happens when a person dies without having made a Will.

Where a person dies without having made a Will, the person is said to have died intestate and their Estate (meaning property, money, belongings etc.) must be shared out according to the rules of intestacy in Ghana and no other way. The Intestate Succession Act (PNDC Law 111) is where we find these rules. As per that law, the Estate of any person who dies without making a Will (the Intestate) must be shared according to that law notwithstanding the person’s religion, culture, marital status or belief of whatever kind.

PNDCL 111 provides that before the Estate of such a person can be shared or distributed by anyone, there is the need to apply to the court for permission to do so. The law further provides the appropriate persons who can apply to a court for such permission and be granted a certificate which is called Letters of Administration (LA). The LA authorizes the person or persons who receive it (called 'Administrators') to distribute the estate of the deceased according to law and not as they please.

Under PNDCL 111, representatives of those entitled to apply for LA are those who the law has identified as the ones to whom the Estate must be distributed, also called ‘beneficiaries’ of the estate. Therefore, any person who interferes with the Estate of an Intestate without first obtaining LA commits the offence of ‘intermeddling’ and such a person could be fined and jailed to a term not exceeding one year if convicted. [READ A SUMMARY OF PNDCL 111].

A few things to bear in mind:

Who are the Beneficiaries under PNDCL 111?

PNDCL 111 targets four (4) groups of persons ONLY, to whom the Estate of the Intestate will be shared if they survive the Intestate. Sharing is done in already specified proportions. In order of priority (that is, from the most important to the least important), the groups of persons are;

1. The spouse

2. Children (biological or adopted)

3. Parents

4. The customary family

How is the sharing done?

PNDCL 111 provides that household chattels (i.e. jewelry, clothes, furniture and household appliances, simple agricultural equipment, motor vehicles and household livestock) and one house, if the Estate includes a house or houses, are to be given to the spouse(s) and children who survive the Intestate in all circumstances. The spouse and the children will have equal shares in the one house and the chattels. This is part of the reason why it is an offence to eject or drive out spouses or children from the matrimonial home or seize household chattel. A person will thus be charged with the offence of intermeddling for doing so.

After the house and chattels are taken out of the Estate, the rest of the Estate, referred to as THE RESIDUE is then to be distributed between the beneficiaries depending on who actually survives the Intestate in the predetermined fractions as follows:

Yes, these fractions are a little confusing – for all of us – but the main point is that the Residue of the Estate of the Intestate is valued and then distributed in accordance with these fractions.

Challenges of PNDCL 111 and future outlook

Before PNDCL 111 came into force in 1985, the Estate of the Intestate was distributed based on customary law and the lineage system a person hails from. In Ghana we have patrilineal and matrilineal systems and successors are chosen based on this. Many widows and children in particular, have suffered under these systems and some do still continue to have challenges. So, to be fair, PNDCL 111 is a significant improvement on what subsisted before it came into force. For instance, the law makes sure that children and spouses, who are members of the nuclear family, are given priority since they are the most directly and badly affected by death.

However, the law has its limitations, especially in terms of who benefits from the Estate of the Intestate and how the distribution of the Estate is organized. Also, PNDCL 111 does not concern itself with the specific situations in every family or any particular interests that the Intestate may have had. That is to say, how prominent a person was in the life of the Intestate or the value that the Intestate placed on possessions intended as gifts for someone in particular are not considered by the law. Added to these is the fact that the law does not consciously consider, several of the usual family circumstances that almost always exist in our part of the world, such as the existence of multiple wives and households or persons who have acted as the Intestate’s parents but are not the biological parents. These often complicate the sharing of the estate under the rules provided by the law.

Thankfully, there are efforts to have PNDCL 111 replaced by a new law which takes the challenges of implementing the current law into consideration. Until that law is passed, we have to make better use of this one. Or better still, please make a Will! So as to avoid unnecessary disagreements, confusion, legal battles, fees, delays and family feuds. Writing a Will is the best thing you can do to minimize the additional stress on your family and friends who will already be experiencing the pain of losing you.

The question still remains though – would you rather make a Will, or you would prefer to let the State determine how your Estate should be shared and who should benefit?

With gratitude,

Your devoted Legal Advocate and Ombudsperson