Dying without a valid will in Ghana means forfeiting your right to decide how your self-acquired property is distributed. When a person dies without a will (intestate), their estate is distributed strictly according to statutory formulas rather than personal preference.
Understanding the legal framework governing testacy prevents family disputes, protects dependents, and ensures estate distribution aligns with expressed wishes.
BrakoPowers Law Hub breaks down the capacity, formal execution rules, electronic limitations, and statutory exceptions under the Wills Act, 1971 (Act 360) and the Intestate Succession Law, 1985 (PNDCL 111).
1. What Is a Will Under Ghanaian Law?
A will is a legal instrument through which a person (the testator) disposes of property that they have a lawful right to leave, to take effect upon their death.
A testator can only dispose of self-acquired property. Jointly held family property, stool or skin property, and unvested customary property cannot be validly devised by an individual will.
2. Who Has Testamentary Capacity? (Section 1 of Act 360)
Under Section 1 of the Wills Act, 1971 (Act 360), a person can make a valid will if they satisfy two cumulative criteria:
(a) Age Requirement: The person must be 18 years or older.
(b) Mental Capacity (Compos Mentis): The testator must possess sound mind, memory, and understanding at the time of execution.
If an interested party proves that a testator suffered from severe mental infirmity, delusion, or lacked the cognitive capacity to understand the nature of their act, the High Court will declare the will void for lack of testamentary capacity.
3. Formal Execution Requirements (Section 2 of Act 360)
To be legally binding and enforceable before the Probate Registry, a standard will must comply strictly with the formal execution rules under Section 2 of Act 360:
(a) In Writing: The will must be recorded in writing (typed or handwritten).
(b) Testator’s Signature: It must be signed by the testator or by another person in the testator’s presence and by their direct direction.
(c) Two Attesting Witnesses: The testator must make or acknowledge their signature in the simultaneous presence of at least two witnesses present at the same time.
(d) Witness Attestation: The witnesses must subscribe/sign the will in the presence of the testator.
Crucial Rule on Witnesses (Section 3 of Act 360): A witness to a will (or their spouse) cannot benefit under that will. While the will itself remains valid, any gift, devise, or bequest made to an attesting witness or their spouse is legally void.
4. Special Protections for Blind or Illiterate Testators
To prevent fraud, undue influence, or misrepresentation, Section 2(3) of Act 360 mandates heightened execution requirements for illiterate or visually impaired testators:
(a) The document must be read over and clearly explained to the testator in a language they fully understand.
(b) An Illiterates’ Protection Clause (Jurat) must be inserted at the end of the will, declaring that the contents were read over, explained, and appeared to be perfectly understood by the testator prior to signing or affixing their thumbprint.
5. Can You Type and Save a Will on Your Phone or Computer?
The answer is “No.” Under Ghanaian law, an electronic document or digital file does not constitute a valid will. While the Electronic Transactions Act, 2008 (Act 772) modernised digital contracts and signatures in Ghana, Section 2 of Act 772 explicitly excludes wills, codicils, and testamentary dispositions from its electronic regime. A valid will in Ghana must remain a physical, ink-signed paper document.
6. Privileged Wills: Special Rules for the Armed Forces (Section 6)
The Wills Act recognises that military personnel on active deployment face unique emergency conditions. Under Section 6 of Act 360, a member of the Armed Forces on active service enjoys special statutory dispensations:
(a) They may make a valid privileged will regardless of age (even if under 18).
(b) The will may be entirely handwritten without witnesses, executed with only one witness, or declared orally before two witnesses.
7. What Happens If You Die Without a Will? (PNDCL 111)
When a person dies without executing a valid will or if their will is declared invalid by the High Court, the estate is classified as intestate.
The estate is then distributed according to the statutory ratios set out under the Intestate Succession Law, 1985 (PNDCL 111):
(a) The Matrimonial Home and Household Chattels: Vests automatically and absolutely in the surviving spouse and children.
(b) Residuary Estate: Distributed according to fixed statutory percentages among the surviving spouse, children, surviving parents, and the customary family.
Executing a valid will removes your estate from the rigid statutory defaults of PNDCL 111 and ensures your assets are distributed according to your specific wishes.
Key Takeaway
Making a valid will requires meeting statutory age, sound mind, proper attestation by disinterested witnesses, and compliance with Act 360.
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