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“In The lifetime of their relative, they cannot vent their spleen on his wife. The opportunity comes when he dies. The poor widow and her children are subjected to a vulgar and humiliating abuse; they are made to pay unreasonable and unjustifiable funeral dues, to incur liabilities in respect of the funeral which can find no foundation in customary law; and after the funeral are harassed and driven to desperation by unnecessary litigation.” Hayfron Benjamin J (as he then was) In Re Ackom-Mensah (Decd) Ackom-Mensah v Abosompem (1973) GLR18

Introduction

Upon the death of a person intestate, (without making a Will), the need arises for the application for Letters of Administration (LA) by persons so entitled to enable them administer the estate of the deceased’s property and wind up the estate. Any person who deals with the property without lawful authority is liable for the offence of intermeddling[1] which has sanctions attached. “Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.”[2] Under the law, both procedural and substantive, there are four categories of persons who qualify to apply for such. One category of persons who according to law qualify to apply is the Customary Successor of the deceased, save that in terms of priority they are the fourth. When the incident of death occurs, the surviving spouse and surviving children who are closest to the deceased are usually in a state of mourning and the least they expect is to be frustrated by any other person. Often in the application for the Letters of Administration, Counsel or parties are confronted with the need to add a Customary Successor or Head of Family as Applicant or swear a supporting Affidavit.

The burden of the author in this paper is to discuss the requirements for the application for Letters of Administration and argue that the insistence on the presence of the Customary Successor or head of family is counterproductive and superfluous to the main purpose of the Intestate Succession Law, that their presence is unnecessary and should not be a pre-requisite to the application or grant of the Letters of Administration. In so doing the author shall make reference to the relevant legislation and case law including without limitation to the Administration of Estates Act 1961 (Act 63), the High Court (Civil Procedure Rules) C.I 47 2004, In Re Asante Deceased; Owusu v Asante[3], Progressive Modern Co. v Bonsu Esther,[4] In Re Ackom-Mensah (Decd) Ackom-Mensah v Abosompem (1973) GLR18 among others.

Upon death Intestacy

Upon the death of person without a will, the person is said to have died intestate. The substantive law applicable in this instance is the Administration of Estate Act 1961 (Act 63) and the Intestate Succession Act 1985 (PNDCL 111) which provide for how the properties of the deceased must be shared. The law provides that the persons who qualify to apply to administer the estate are the Surviving Spouse, Surviving Child, Parent and Customary Successor of the deceased[5]. The Law also provides for the category of persons entitled to benefit under the estate of the deceased should he or she die without making a Will.

In the process of the Application for the grant of Letters of Administration, the law is clear on the persons who can or qualify to put in an Application and be so appointed as Administrators. It is an application made by the Surviving Spouse and/or Surviving Children and/or Surviving Parent and/or Customary Successor. Any of the persons in the four categories of persons or a combination of any of them can apply, as long as they are within the confines of the law. The Applicant or Applicants as the case may be apply by filing a motion with an affidavit together with the statutory forms.

It has been a practice for some courts in the application process to request or insist on the filing of an affidavit by either the Head of Family or Customary Successor failing which the application would not be granted. The Author suggest that there is no position known to law that makes such an affidavit a sine qua non for the process of applying for the grant of Letters of Administration. There are instances that due to the complexity of the particular case, there is no way a customary successor or head of family would be willing to swear to an affidavit in support, or there are instances where it would be impractical for the said head of family or customary successor to join as some would. The Author suggests that such failure or refusal should not stand in the way of the grant of the Letters of Administration, a view which is supported by law, both statute and judicial decisions to be discussed presently. Indeed, practitioners are familiar with instances where the Customary successors or head of family would want to be applicants and play an active part in the administration of the estate, sometimes to the chagrin of the surviving spouse and children who are first and second in priority,[6] a position the author finds counterproductive to the purpose of the Intestate Succession Law, especially when the nature of the inventory or the estate suggests otherwise.

Time was when the extended family was prominent and so it was easy for uncles and aunties to play certain roles in the lives of their loved ones. With the advent of the prominence of the nuclear family, the role of extended family members is diminishing by the day with some or most of them becoming irrelevant in the lives of their otherwise family members. In a lot of instances, the relationship between the surviving spouse and children on one hand and the customary successor may not be cordial either deliberately or by some past event while the deceased was alive or time lapses.

Justification of the enactment of PNDCL 111

It is trite that statutes are usually enacted to cure a mischief, solve a problem or to fill a lacuna in the law. Before the enactment of the PNDCL 111, the law on inheritance was regulated in accordance with custom. In some instances, the customary practices worked injustice on surviving widows and children, who through the customary law at the time in force were denied access or rights to the property of their deceased husbands and fathers as the case may be. These were anomalies that needed to be gotten rid of. There was obviously the need for changes to be made in the law to cure the injustice. As the learned A.K.P Kludze in his valuable book,[7]

“Reform of this area of the law had been clamoured for by many segments of the Ghanaian society. Several attempts have been made in the past, though with only limited success, to make provision for surviving spouses and children of deceased spouses and parents”

Laws are usually enacted to cure a mischief, to correct an injustice or to fill a lacuna. Every statute therefore has its objective and usually same is stated in the memorandum to the law. In order to cure the mischief and injustice that prevailed under customary law against widows and children brought about the need for the promulgation of the Intestate Succession Law in 1985. The learned A.K.P Kludze in his book cited supra said thus at page 161, “As from 14 June, 1985, there has come into force the Intestate Succession Law, 1985, which statutorily regulates rights to intestate succession in Ghana. As a statute, this law supersedes and reforms the rules of customary law. Its effect is a radical alteration of the existing customary law, especially as it affects members of matrilineal communities.”

The purpose of the Intestate Succession law as seen in the memorandum to the law is stated and reproduced by the said author in his celebrated book thus,

“The law is aimed at removing the anomalies in the present law relating to intestate succession and to provide a uniform succession law that will be applicable throughout the country irrespective of the class of the intestate and the type of marriage contracted by him or her.

The present law on intestate succession appears to be overtaken by changes in the Ghanaian family system. The nuclear family (i.e. husband, wife and children) is gaining an importance which is not reflected in the current laws of succession. There is a tension between this smaller group and the traditional family unit as to the appropriate line of devolution of property upon the death intestate of a member of both units. At customary law, there is very little protection for a surviving spouse. Neither spouse has a right to the property of the other. Children in a matrilineal system have no more than a right to maintenance by their father’s customary successor and a right to residence in their father’s house subject to good behavior.

The growing importance of the nuclear family brings with it its own logic of moral justice. Simply put, this argues that a surviving spouse be compensated for his or her services to the deceased spouse; that a spouse is more likely to look after the children on the death of the other partner than anybody else; and that the expectations of the spouses are probably best satisfied by giving the property of one to the other on the former’s death.

The customary law conception of marriage did not regard the wife as part of the husband’s economic unit. Therefore, the wife’s claim on the husband’s property was also limited. As part of the increasing importance of the nuclear family, there is a movement towards involving the wife into the husband’s economic activity. There is a corresponding weakening of the extended family. That group is therefore less likely to be able to support widows who are [not?] members of the family. It is right that the husband with whom the woman has lived and whom she has probably served, is the person on whose property she must depend after his death.”

There was a time, when upon the demise of a man, his wife and children had no or little interest in the estate of their husbands and/or fathers. Indeed, the venerable Ollennu J expressed this position in the case of Quartey v Martey and Another,[8] thus, “that by customary law it is the duty of a man’s wife and children to assist him in the carrying out of the duties of his station in life. The proceeds of that joint effort, and any property which the man acquires with such proceeds, are by customary law the individual property of the man, not the joint property of all…..”, his Lordship further said, “that by customary law, upon a man’s death intestate his self-acquired property becomes family property, vested in his family. No member of the family has the inherent right to succeed – succession is a matter of appointment, or election, by the head and principal members of the family…”

Sufficiency of Surviving Spouse and Children as Applicants.

Without down playing the role of the extended family, it is trite that the nuclear family has in recent times taken precedence over the extended family. There are people who have had no encounter with any such extended family either at all or for a very long time. Upon the loss of a relative therefore, it seems to the Author that it is usually the immediate family members (nuclear family) who suffer the most and as such deserve the priority role. It is not uncommon that in the process of filing and moving an application for the grant of Letters of Administration, some judges will ask and insist on sighting the affidavit of either a Head of Family or Customary Successor. In some instance, some courts will actually adjourn the hearing until an affidavit of head of family or customary successor is filed and placed on record. The author takes the view, humbly that that approach seems to make the affidavit of head of family and customary successor a sine qua non to the grant, which the author suggests is contrary to law and the spirit and purpose of the PNDCL 111. In a life case conducted by the author, upon the death of the deceased, there was the need to apply for the Letters of Administration. The deceased was survived by a wife and four adult children who in the author’s view ought to be the applicant. A brother of the deceased who was at loggerheads with the deceased brother and not on very good terms with the surviving spouse and her children wanted to be part of the applicants qua applicants. The Honourable Court granted the Letters of Administration without adding the said brother of the deceased whereupon a caveat was filed after the notice if next of kin was posted. The court after hearing the arguments on the caveat dismissed the claim of the caveator and granted the Letters of Administration to the surviving spouse and children. The refusal to add the said brother of the deceased in the author’s view is on a sound judicial authority which shall be discussed presently.

Is the presence of Head of Family or Customary Successor a sine qua non?

Under the law, the persons entitled to apply for the grant of the Letters of Administration include the customary successor. There are actually four categories of persons who are so entitled. Order 66 rule 13 of the High Court (Civil Procedure) Rules provides for this in order of priority thus, “Where a person dies intestate on or after 14^th June 1985, the person who have beneficial interest in the estate shall be entitled to a grant of Letters of Administration in the following order of priority (a) any surviving spouse; (b) any surviving children; (c) any surviving parents (d) the customary successor of the deceased.” It is suggested that any one of the persons in the four categories above can by an application deposing to the relevant information for the grant of the Letters of Administration to administer the estate of the deceased. The practice however is that usually the application is by surviving spouses and children. Some courts or judges however made it a practice to request for either an affidavit of customary successor or head of family. This affidavit of customary successor or head of family can either be in the capacity as applicants or as merely in support of the applicants. If they depose to the affidavit as supporting the applicants, there is usually not much of a challenge, but when they depose to the affidavit as applicants, it means they become part of the administrators and if there is a problem like loggerheads or deadlock between the customary successors or head of family on one hand and the surviving spouse and children on the other, the administration would be frustrated.

In the application process, the court exercises a discretion as to the grant and the person to whom to grant same. Section 79 of the Administration of Estate Act[9] provides that, “(1) Subject to this section, the selection of a personal representative is within the discretion of the Court. (2) In granting administration the Court shall consider the rights of persons interested in the estate, and, in particular, administration with the will annexed may be granted to a devisee or a legatee and the administration may be limited in the way that the Court thinks fit. (3) The Court may (a) where the deceased person died wholly intestate, grant administration to one or more persons interested in the residuary estate of the deceased person, if they make an application for that purpose; and (b) if by reason of insolvency of the estate of the deceased person or of any other special circumstances, it appears to the Court that it is necessary or expedient to appoint as administrator a person other than the person who, but for this provision, would by law have been entitled to the grant of administration, despite anything in this Act, appoint as administrator the person who the Court thinks expedient, and an administration granted under this provision may be limited in the way the Court thinks fit. (4) Where it appears to the Court that an estate is vested in the successor of the deceased person under customary law is being duly dealt with, the Court may refuse to grant an application for administration not made by or with the concurrence of the successor.” The effect of the above provision is vesting in the court the power to decide based on the facts before it to appoint from the four categories of persons, and so it is not the law or mandatory that the grant shall be made to all the four categories of persons or the beneficiaries. This position has received judicial blessing by the Court of Appeal in the case of Progressive Modern Co. v Bonsu Esther[10] where his Lordship Tweneboa Kodua J.A, speaking the mind of the Court on the discretionary power of the court to appoint administrator delivered himself thus, “The law leaves within the discretion of the court the person or persons to whom administration is to be granted. Section 79(1) of Administration of Estates Act 1961, (Act 63) provides; ‘79(1) Subject to the provisions of this section the selection of a personal representative is within the discretion of the court’. What this means is that the court can grant an application with or without the head of family vouching for it and unless and until they are revoked  the letters of administration so granted by the court on the basis of affidavit evidence before the court shall be valid for all purposes. The cannot be said to be illegal.” (emphasis mine). The presence of the customary successor therefore is not a condition precedent to the grant or even the application.

In the instance where there are rival and competing interest, the Court must consider whether granting same to all the competing interest will be beneficial to the estate, otherwise the court must consider and grant same to the party with a larger interest or stake in the property. Under the PNDCL 111, the law spells out clearly the entitlement if each of the four beneficiaries from the surviving spouse, through to the customary successor. The case of In Re Essuman (Decd); Essuman & Another v Teschmaker[11], this is what the Honourable Court had to say, “Where both Plaintiff and Defendant have interest in the deceased’s estate, the party with the larger interest was the one better entitled to be granted Letters of Administration in respect of the estate.” Under the Intestate Succession Law, section 4 makes the dwelling home and the chattels therein the property of the surviving spouse and children. The residue of the estate is divided into sixteen equal parts and shared in accordance with a specified ratio depending on who the deceased was survived by. If survived by the spouse and children and parents the ratio is three-sixteenth to the surviving spouse[12], nine-sixteenth to the surviving child[13], one-eighth to the surviving parent[14] and one-eighth in accordance with customary law.[15] The ratio differs and changes depending on who survived the deceased. If the deceased was survived by only a spouse, section 6 (1) of the law provides thus “Where the intestate is survived by a spouse and not by a child the residue of the state shall devolve in the following manner (a) one-half to the surviving spouse; (b) one-fourth to the surviving parent; (c) one-fourth in accordance with customary law.” Subsection 2 of section 6 provides that “Where there is no surviving parent, one-half of the residue of the state shall devolve in accordance with customary law” Sections 7 and 8 provides for instance where the deceased is survived by child only in which case the child takes three-quarters of the residue and the remainder shared between the parents and in accordance with customary law and where the deceased is survived by parent only, three-fourth to such parent and the remaining one-fourth in accordance with customary law. From the above, it is evident that in the eye of the law, there is at all-times one category or person whose interest is higher than the other and so if there are conflicting, competing and rival interests, the Honourable Court must be guided by these considerations in addition to many others. In the case of In Re Essuman (Decd); Essuman & Another v Teschmaker cited supra, the Court used the party with the larger interest to determine who to appoint. In making this point, the Court of Appeal in the case of In Re Appau re-echoed that various proportions of the surviving spouse and children on one side and the customary successor on the other hand. This is the view of the court, “From the analyses given above, it is beyond doubt that under PNDCL 111 the successor has very little of the estate of the family member who died intestate…”

In the case of In Re Asante (Decd); Owusu v Asante[16] it was held per Abban JSC (as he then was) that…..”Although the court had been given a discretion under Order 2 r 8(2) and (3) as to which of those persons entitled to a grant in the same degree should be selected and given the grant, since the matter involved the administration of estates, exercising the discretion of several factors including the suitability of the person to be selected and also his ability to administer the estate expeditiously and economically, had to be taken into account. Accordingly, it was important that if rival claimants were involved in applications for the grant of Letters of Administration, the Court should learn favourably towards the one who was most suitable and also likely to achieve the objectives of the grant and should frown on the claimant whose sole purpose for seeking to be joined was his or her desire to act as watch-dog over the interest of a section of beneficiaries.” The author agrees with the dictum of the learned Justice supra and would even dare to add that, aside frowning on such persons, the court should consider mulcting them in costs if their intention is solely to act as such and frustrate the administration of the estate. The list of beneficiaries as listed in the law is also done in order of priorities. The Supreme Court in the case of In Re Asante (Decd) under the old rules fortified the position when it held in holding 1 thereof inter alia thus, “Under that provision the order of priority was (1) the surviving spouse; (b) surviving children; (c) surviving mother or father; and (iv) the customary successor.” The author is of the humble view that if the 1^st and 2^nd person in order of priority are able, willing and capable of administering the estate, the 4^th in line of priority, cannot run superior to the others and if there is evidence that the addition of the 3^rd and 4^th persons would frustrate the administration of the estate, they should be excluded.

Who is an Administrator? Beneficiary, an officer of the court a duty or privilege?

There has been an erroneous notion among survivors and Counsel have been called upon to advise parties, that it is not the law that once appointed Administrators, you become the owner of the properties of the deceased, there can be nothing farther from the truth than that. The appointment as Administrators rather imposes an obligation on the persons so appointed and there are judicial authorities to this effect.

Administrators are appointed by the Court to administer the estate of a person who died intestate. Unlike Executors, whose authority is derived from their appointment in the Will, the power of the administrators are derived from the court.[17] Being an Administrator in the author’s view is not an entitlement but a responsibility, being appointed as such imposes a duty on persons so appointed to administer the estate in accordance with law in this case the PNDCL 111. It is not surprising that before the grant and issuance of the Letters of Administration, and after the payment of the 3% estate tax, there must be at least two sureties to sign the Bond to guarantee that the administrators so appointed would administer the estate in accordance with law without more.

Some persons however clamour for the appointment as Administrators because of the misconception that, being so appointed makes one the owner of the properties under the estate or gives them a right or entitlement to show off their power. There can never be such a misconception as this in the author’s view. The author surmise and suggests that it is this view, unjustified though, that invites certain persons to insist on becoming administrators even if their being appointed would not augur well for the estate. His Lordship Adade JSC, was apt in that regard when he remarked in obiter in the case of In Re Asante Decd, supra thus, “It would seem that the impression has been created that whoever gets a grant of letters of administration becomes entitled beneficially to the estate of the intestate. This appears to have accounted for the eagerness with which persons vie with one another for letters of administration, leading to interminable disputes and litigations. I am afraid the courts, by their pronouncements and general attitude to administration actions, have contributed in no small measure to creating this impression. There is nothing farther from the truth. A grant of letters of administration only entitles the grantee to administer the estate; it does not give him any beneficial interest whatsoever in the estate, which he does not have otherwise. A grant in fact imposes on the grantee, not privileges, but legal obligations of a serious character, a failure to discharge which may lead to grave consequences. I wish that the courts emphasised these obligations in their dealings, rather than couch rulings and decisions in such forms as to create the impression that the grant suddenly thrusts the grantee into a fortune. And it has not been unknown for grantees, after discovering that the estate is after all not a gold mine, to refuse to act, or, at best, adopt a lackadaisical approach to their assignment”. From the above dictum, the Administrator is appointed by and an officer of the court and is therefore mandated to act in accordance with law. Indeed, the learned Hayfrom Benjamin J (as he then was) in the case of In Re Ackom Mensah (cited supra) when he said in obiter thus, “In the performance of her duty, the administratrix was an officer of the court……” It is the humble view of the author that the posture of some courts in asking for the affidavit of the customer successor or head of family, has contributed to the creation of the impression that their presence is a sine qua non and that by their appointment, it automatically translates them into beneficiaries, no matter the nature of the estate.

The beneficiaries are the persons to whom portions of the estate may devolve. Even though by default a person may be a beneficiary, it is possible that a person may be an administrator and may not have any benefit under the estate. For instance, assuming the deceased left behind only the matrimonial home, or the dwelling house, by virtue of section 4 of the PNDCL 111, devolves to the surviving spouse and children to the exclusion of the parents of the deceased or in accordance with his customary law. The entitlement of the surviving parents of the deceased and the customary successor or family relates to the residue of the estate after the dwelling house and household chattels. It means therefore that, if the deceased had nothing beyond the dwelling house and household chattels, nothing devolves to the surviving parents or in accordance with customary law. In a situation like this, one wonders what a customary successor would do when appointed, except to be a watchdog over the surviving spouse and children.  Under the law, the categories of persons who get the most share out of the estate are the surviving wife and surviving children. In fact, aside the dwelling house and household chattels that devolve to them under section 4 of the Law, they get about 75% of the residue of the estate. This is how their Lordships in the case of In Re Appau (Decd) Appau v Ocansey, puts the issue examining the various proportions, “A simple analyses of these sections will demonstrate that when a person dies intestate, his widow and children are automatically entitled to (a) all household chattels including furniture, cars, radio etc (section 3); and (b) the only house; if he left one house or any number of houses the widow and children will choose if the houses number more than one (section 4). Section 4(b) does not even limit the widow and the children to one house if the houses are more than one. It is only after the widow and children have taken “absolutely” the household chattels and their selected house or houses that whatever is left is the estate, if any (described as residue of the estate) is to be distributed in accordance with section 5 of PNDCL 111. Even under section 5, the widow and the children are entitled to 75 per cent of the residue. At best the successor who will inherit according to customary law (section 5(d)) will be entitled to a paltry one-eight of the residue if the deceased is survived by his parents or 25 per cent if the parents predeceased the dead family member.” This in the author’s view, illustrates the point that aside being the last in terms of priority, as beneficiary the interest of the customary successor in the residue (if any) is very minimal and comes nowhere near the interest of the surviving spouse and children. It is the view of the author that if the customary successor is given so much prominence or pride of place elevated to the position of the surviving spouse and children, or their presence a sine qua non, then mutatis mutandis “the public policy this Law aims at safeguarding will be abused and brought to nought”[18]

Section 12 of the law also provides for ‘Small Estates’ thus, “Despite sections 4,5,6,7 and 8 (a) where the total value of the residue does not exceed fifty thousand cedis, the residue shall devolve to a surviving spouse or child of the intestate or where both the spouse and the child survive the intestate to both of them; (b) where the intestate is survived only by a parent and the total value of the estate does not exceed fifty thousand cedis the estate shall devolve to the surviving parent.”  This provision shows that in respect of small estates, nothing may devolve in accordance with customary law and so making the customary successor or head of family an applicant in the author’s view serve no purpose.

Does Formers Spouses, Concubines, Side Chicks and ‘Baby Mamas have any place?

It would be a mark of naivety on the part of the author to rule out the possibility of attempts by such persons for claiming a role in the application for Letters of Administration, especially so when the phenomenon of baby mama seem to be gaining grounds and popularity in Ghana. One would ask what is Baby Mama? Baby Mama in the author’s view, “is the phenomenon, recent or otherwise, where whether intentionally or accidentally, a woman gives birth to a child for a man, who is not his husband neither do they intent to marry.” This is quiet common these days, and upon the demise of the father of the child, whose father may have his own family with a wife and children by that wife, the other woman (baby mama) who is seen by the woman (surviving spouse) as an intruder would want to be part of the process to either acquire something for herself or for those well advised but partially so, to protect the interest of her child born out of wedlock. The law is settled that in the case of a concubine or baby mama, she has no entitlement for herself qua concubine or baby mama, the only interest such persons have is that of their children who are so entitled by virtue of being children of the father, albeit born out of wedlock. One cannot deny them by virtue of being born out of wedlock, because under Ghana law there are no illegitimate children, neither did they play any role in their birth or the circumstances (accidental or intentional) of their birth. In the case of In Re Asante Decd, (cited supra) the issue of whether a concubine qua concubine can join in the application for the Letters of Administration ostensibly to protect the interest of her children and the Supreme Court answered this question in the negative, especially when there are other persons in the category of children so appointed. This is what their Lordships said among others, “Accordingly, since in the instant case the joinder of the appellant, a concubine, as an administratrix had the potential of creating inconvenience and causing confusion which would delay the administration of the estates, and besides there was nothing on the record to show that the eldest son of the deceased could not protect the interest of his half-brothers and sisters, the reason for the joinder of the appellant by the High Court, i.e. to offer her an opportunity to protect the interest of her two infant children, was not sound. Moreover, there were no peculiar circumstances to compel the judge to single out the appellant’s children for special treatment and thereby distinguishing between the infant children of the appellant and the other infant children of the other women. Accordingly, the decision of the High Court to join the appellant in the grant was a wrongful exercise of judicial discretion and the Court of Appeal was right in reversing it.” This in the author’s view is the sound position of the law regarding the peculiar facts that the Court of Appeal and the Supreme Court were confronted with. In the author’s view, if there were no other children from the other women except the concubine or baby mama and that child or those children were infants, the court would have considered joining the concubine or baby mama solely to protect the interest of her children, on condition that their joinder would not frustrate or delay the administration of the estate. The author cannot overemphasis this because Administrators must act together and must complete the administration and wind up the estate.

The author would not end this piece without the piercing but true words of the respected Charles Hayfron Benjamin which he spoke half a century ago and still relevant and which the author believes is the reason for some of the instances where certain family members would want to be part of the Administration processes. The learned jurist after demonstrating his knowledge of the system he found himself in Ghana spoke thus….;

“The deceased, it would seem was very humble birth like many equally distinguished Ghanaians. His undoubted ability, hard work and integrity enabled him to rise to the top of his profession. He lectured in Accountancy at the University of Ghana, and at the time of his death was the Chief Executive of the Ghana Industrial Holding Corporation, a massive industrial and financial complex. Of his massive knowledge, there can be no doubt. He published learned articles and books on company law, accountancy and allied subjects. The widow is also very well educated.” His Lordship then continues and draws a sharp contrast thus, “The members of the deceased’s extended family are however less fortunate. They especially the women among them, are largely illiterate. The sister of the deceased who is the customary successor and also the first defendant herein is a complete illiterate. The second defendant, the head of the deceased’s family, seems to be equally illiterate. As is usual in this type of case the mother of the deceased, who according to customary law is the founder of the family and the real successor to the deceased, and whose grandchildren are likely to suffer as a result of the unnecessary litigation, is pushed into the background or off the scene altogether, and some relative, usually uneducated or semi-educated persons, come forward to fan the flames of envy, greed and suspicion and to instigate the family to press claims (usually unfounded) to the harassment of the bereaved and already distressed widow and her children. The mother is pushed off the scene because usually and normally, she knows her own grandchildren; each of them would have been placed on her knees at birth or at the naming ceremony; one may be named after her. They may have spent their holidays with her and she would be fond of them. The proverbial disharmony between the husbands and the wife’s mother does not usually exist between the wife and the husband’s mother. Even when its exists, it does not usually drive the mother to wish hardship on her grandchildren,” His Lordship continues thus, “The fertile field for instigation of envy is among the sisters, brothers, cousins and other relations of the deceased husband, especially where they have been less successful in life There seem to regard the wife of the deceased as the source of all their woes. If only the deceased had not contracted the marriage under the Ordinance, he would have spent his money on them, and their lot would probably have been better than it turned out to be. In the lifetime of their relative, they cannot vent their spleen on his wife. The opportunity comes when he dies. The poor widow and her children are subjected to a vulgar and humiliating abuse; they are made to pay unreasonable and unjustifiable funeral duties, to incur other liabilities in respect of the funeral which can find no foundation in customary law; and after the funeral are harassed and driven to desperation by unnecessary litigation”.

What the author has been struggling to say and out across is not to deny the family or customary successor their share in the estate of their deceased family member. Rather it is the respectful view of the author that it is not necessary to include the affidavit of customary successor in the application processes especially when the list or size of the inventory suggests the family would not have any share thereunder and so the inclusion of the customary successor makes them only serve as a watch-dog over the process. In such a case, it in the view of the author serves no useful purpose. If the estate is vast and portions will devolve to the family but the inclusion of the customary successors will delay, or frustrate the estate, the court must exercise its discretion in accordance with the principles espoused supra to avoid the frustration of the estate which will not serve any useful purpose and not be in the interest of justice.

Conclusion

The author in conclusion submits that, the practice of some of their Lordships insisting that the customary successor or head of family be made an applicant or swear to an affidavit in support of the application for the Letters of Administration is not founded in any law, statute or judicial, it should not even be elevated to the practice as doing so would be counterproductive and superfluous to the purpose of the Intestate Succession law. Insisting that customary successors should be part of the process for Letters of Administration in the author’s view, is almost like going back to the state of the law before 1985 when the PNDC Law 111 was enacted, and that will counterproductive, a superfluity and anachronistic.

[1] In Re Appau (Decd); Appau v Ocansey [1993-94] 1 GLR 146

[2] Order 66 Rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I 47)

[3] [1993-94] 2 GLR 271

[4] (2009) 19 M.L.R.G 65 CA

[5] Order 66 Rule 13 of the High Court Civil Procedure Rules C.I 47 2004

[6]

[7] Modern Law of Succession in Ghana 2015 Edition

[8] [1959] GLR 377

[9] (1961) Act 63

[10] [2009] 19 M.L.R.G 65 CA

[11] (1967) GLR 359

[12] Section 5(1)(a) of PNDC Law 111

[13] Section 5(1)(b) of PNDC Law 111

[14] Section 5(1)(c) of PNDC Law 111

[15] Section 5(1)(d) of PNDC Law 111

[16] (1993-94) 2 GLR 271

[17] In Re Appau cited supra

[18] In Re Appau