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It is the Political Philosopher J.J. Rousseau who said “Man is born free but everywhere is in chains.” It is usually said that there is no freedom without limitation.

Introduction

Under Inheritance law, there are two modes in which property from one person (deceased) can pass to another (Survivor or Beneficiary). A person may decide to make a Will in writing and devise his personal or self-acquired property[1], or what he or she may be entitled at the time of his or her death[2], or at a time thereafter[3] to any person of his or her choosing. In such a case, the person is said to have died testate and his or her estate will be administered in accordance with his last wishes in his or her Will. The only condition is for the testator to fulfil the requirements such as, the testator must be eighteen years or above,[4] of sound mind[5] nominate qualified executors who are of age twenty-one years and above,[6] the document duly and legally executed by the testator and at least two attesting witnesses[7] or by a person authorized so to do by the testator in the presence of the testator together with at least two other witnesses.[8] The other mode is when the person dies without making a Will, in which case the person is said to have died intestate and the Intestate Succession Law (PNDCL 111) is used to administer or share the estate. In such a case, the law actually indicates who the beneficiaries of the estate are i.e. the surviving spouse, the surviving children, the surviving parents if any as well as the customary successor in accordance with customary law.

In this paper, the author discusses the subject of Testamentary Freedom, that is whether a person (the testator) has the freedom to give property to any one he likes in his or her Will and disinherit certain persons, and what happens if a person makes a Will and does not adequately make provisions for some specific persons in the law who depended on the testator, and conclude that although a person is free to dispose of his property to anyone of his or her choosing in his Will, there are a few exceptions provided by law and hence the concept of testamentary freedom is not absolute.

Testamentary Freedom

What is Testamentary Freedom?

Testamentary Freedom is the freedom a person (testator or testatrix as the case may be) has to deal with his or her own property in his or her Will in any manner that he or she likes. This freedom is recognized by law. There is no law that prevents or compels the testator or testatrix to devise his or her properties in a particular manner. This is seen even in section 1 of the Wills Act thus, “Any person of or above the age of eighteen years may in writing and in accordance with this Act make a will disposing of any property which is his or to which he will be entitled at the time of his death or to which he may be entitled to”. According to the learned author and jurist, Professor A.K.P Kludze, the testator may, by his exercise of the power of disposition, exclude the rights of his surviving spouse, children, heir, next-of-kin and other relations. He argues that “there is no concept of legima portio, the spouse’s indefeasible share or a legally determined portion of the estate of which the testator may not dispose.”[9] This means in simple terms that, a person (testator or testatrix) can decide in his or her Will to give all his property to his girlfriend (‘side chick’) or boyfriend (‘side nigga’) as the case may be, without giving anything to his surviving wife and children. This is a clear case of testamentary freedom.

In Ghana, the issue of testamentary freedom has recently been the subject of a determination by the Supreme Court of Ghana in the case of Thomas K.A Kofigah v Kofigah F. Atanley[10]. This was a case where upon the death of a testator and reading of his Will, the Plaintiffs (two of the testator’s children) who were aggrieved by the contents of the Will caveated and issued a Writ of Summons against the Executors at the trial High court challenging the validity of their father’s Will on grounds that the signature was forged and that the devises made by their father in the Will could not have been made by him, because they knew him too well. They lost at the trial High Court but successfully appealed to the Court of Appeal. Aggrieved by the decision of the Court of Appeal, the Executors appealed to the Supreme Court challenging the decision of the Court of Appeal. The Supreme Court allowed the appeal and upheld the validity of the Will. Their Lordships at the Supreme Court were clear in their minds in upholding the principle of testamentary freedom. His Lordship Pwamang JSC, pronounced on the liberty of a testator to give out his or her self-acquired property in any manner he or she pleases in these words, “A testator is a liberty to give out her self-acquired property in the manner she pleases without meeting the expectations of any person. As Knight Bruce said in Bird v Luckie (1850) 68 373 “No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A testator is permitted to be capricious and improvident, and is more at liberty to conceal circumstances and the motives by which he has been actuated in his disposition. Many a testamentary disposition may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.” His Lordship Amegatcher JSC also had this to say on the unfettered discretion of a testator, “It has been the habit of recalcitrant children disinherited in the Will of their deceased parents or guardians to mount challenges against the Will. Children ought to know that after the age of 18 years, a parent or guardian is under no obligation to make provision in his or her Will for them. Any such provision is based on the whims of the testator arising from natural love and affection, respect for, care for and cordial relationship a child shows or strikes with the parents or guardians when they were alive.” The Court had this word of caution…” The practice whereby recalcitrant children challenge the Wills of their parents or guardians is becoming so rampant that it is time to call upon professional advisors to confront such children with the realities of life. That is not to say that Wills suspected to have been forged should not be challenged.

It is submitted however that, Testamentary Freedom under Ghana law is not absolute since under certain circumstances, the court may interfere with the dispositions of the Will after the testator is dead. The Wills Act 1971 (Act 360) under section 13 provides instances where the courts can disregard the dispositions made by the testator and make an order for reasonable provisions to be made for certain specific persons under the Will, if the testator does not provide for them while alive. The Constitution of the Republic of Ghana has also made some inroads in this regard. In essence although the law allows the testator the freedom to dispose of his properties in any manner he likes, the law is also interested in ensuring that the dependents of the testator are well provided for, such that the Court is even empowered to alter the provisions made in favour of such person, hence some limitation to the testamentary freedom exercisable by the testator.

This intervention is therefore seen in two main laws, i.e. The Constitutional intervention[11] and the Statutory intervention through the Wills Act. Without any disrespect to the 1992 Constitution, the author shall discuss the relevant provisions of the Wills Act first, before he delves into the Constitutional provision.

The learned A.K.P Kludze would put it succinctly thus “However, under section 13 of the Wills Act, 1971, there is a power in the Court to provide for certain dependants out of the estate, if a satisfactory provision is not made for them in the will or otherwise.”[12] Section 13 of the Wills Act is entitled ‘Provision for dependents’ and provides in subsection 1 that, “If, upon application being made, not later than three years from the date on which probate of the will is granted, the High Court is of the opinion (a) that testator has not made reasonable provision whether in his life or by  will of the testator for the maintenance of a father, mother, spouse or child under eighteen years of the testator, and (b) that hardship will thereby be caused, the High Court may, taking into account of all relevant circumstances, despite the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased.” What this section does is to allow the High Court under certain circumstances to disregard certain wishes of the testator or testatrix in his or her last Will and Testament to make provisions that may seem contrary to the testamentary freedom of the testator. It is apposite to emphasize here that; (a) the persons that qualify under this section are a father, a mother, a spouse or a child of the testator who is less than 18 years, (b) they must demonstrate to the Court and the court must be of the opinion that the testator did not make reasonable provision either in the Will or his or her lifetime for their maintenance, (c) they must be dependents on the testator and show that hardship will result from such failure, (d) the application must be made to the High Court and (e) the application must be made within three years after the grant of probate (take note it is not within 3 years of the death of the testator but three years after the grant of probate, although the record shows the court has in some cases allowed an application before the grant of probate,). So if a testator or testatrix in making the Will, fail to make provisions reasonably for such dependents, the High Court may intervene and make such provisions under the Will when an application is made under section 13 of the Wills Act. The reasonable provision under section 13 could take the form of a lump sum whether immediately or later or a grant of an estate or interest in the immovable property for life.

The Courts in Ghana have had the opportunity to decide cases under section 13 and the view is that if it is possible to make the provisions from the residual clause or residue, it would rather make the reasonable provision from the residue in order not to dispossess a valid beneficiary. Justice Koranteng Addo in the case of In Re Allotey (Decd); Allotey & Ano. v. Otoo & Ano.[13], had this to say “But where specific bequests had been made and there was residue, then it would be ideal to make such statutory provision from the residue”.

In essence therefore, if you are a mother, father, spouse or child under 18 years, and your son, daughter, spouse or parent upon who you depended dies, without making a provision for your reasonable provision or maintenance in his or her Will, you can apply to the High Court under section 13 for the Court to make such reasonable provision from the estate. A review of the law reports shows an example in the case of In Re Anim-Addo (Decd); Nkansah alias Anane and Another v Amomah-Addo and Another[14].  In this case, a widow of the testator applied under section 13 of the Wills Act to the Court praying for reasonable financial provision to be made for her and her infant child of eight years. The Executors of the Will through their lawyers raised a preliminary objection to the application on the grounds that, her application was premature since it had been made before the grant of the probate as required by section 13. They contended that the application could only be brought under section 13 when probate had been granted and that was yet to be done. They further argued that the executors of the Will had no access to the properties to enable them execute any orders that the court might make. The High Court however dismissed the objection and granted the application of the widow, the court speaking through Justice Aryee said “when an executor was appointed by a will, he derived title from the will and the property of the deceased vested in him, from the moment of the testator’s death, so that probate was said to have relation to the time of the testator’s death. Section 13 of the Wills Act, 1971 (Act 360) had its purpose: it was to warn beneficiaries and other persons claiming any interest in the estate of the testator or under the will to come forward within three years before the estate was shared out. Executors, unlike administrators, derived their power under the will and not from the grant of probate or letters of administration. The instant application for reasonable provision under section 13(1) of the Act was therefore properly before the court and the court had power to entertain it even before the grant of probate.” The Court in this case construed the timing in section 13(1) purposively to achieve substantial justice and not mechanically to result in absurdity. It is suggested that once the applicant finds him or herself within the confines of section 13(1) the Court will grant the application and make the reasonable provisions out of the Will for such an applicant.

Regrettably, the Wills Act 1971 (Act 360) did not provide for an instance of a child or dependent who is over eighteen (18) years, but due to some special circumstances is not in a position to take care of himself i.e. is totally dependant on the deceased.

This lapse in the law under section 13 of the Wills Act engaged the attention of our Courts in the case of Humphrey- Bonsu and Another vrs. Quaynor and Others[15] in a very interesting but sad scenario. In this case, the Court was inter alia invited to consider whether the eighteen-year age limitation on children under section 13(1) of the Wills Act applies to a child of twenty-one years of age, who suffered physical and mental disability from birth. The Plaintiff applied for provisions to be made for her and her son who was 21 years of age and mentally retarded. She found favour with the High Court which granted her prayers. The other party appealed against the decision and the Court of Appeal allowed the appeal, the judges of the Court of Appeal were divided with two Justices allowing the appeal and disqualifying the child because he was above 18 years. The other judge in the minority reasoned that, although the child was 21 years and above 18 years, his circumstances should qualify him to come under section 13, but as is the law, the decision of the Court is that of majority. The majority view on this was as follows “The language of section 13(1) of Act 360 admitted of no ambiguity whatsoever and in effect clearly prescribed that only a child of the testator under eighteen years of age was entitled to the provision under the section. Hence the law maker clearly intended the natural age of a child to prevail. Consequently, the provision was to be enforced however harsh the result might be. In the instant case since both the second and third plaintiffs were eighteen years old at the time the testator died, they did not qualify as dependents under section 13(1), however much pain or grief one had for them especially the third plaintiff.” The author respectfully disagrees with the position that the law maker intended the natural age of 18 to prevail even in the face of clear evidence that same will result in an absurdity and hardships. The age 18 is the age of majority which is a presumption that by that age a person is in a position to take certain decisions and able to take care of him or herself. Therefore, if there is some reason and evidence to the contrary such as in this case, that should have weighed on the minds of the majority. The minority opinion was rendered by Twumasi J.A. with whom the author agrees thus “With regard to the question of the applicability of the provision of section 13(1) of Act 360 to the third plaintiff, I have found the construction placed on that subsection…. To be draconian and harsh… I conceive it to be the solemn duty of a court to construe a statute in such a way as would accord with common sense and justice. Thus in the English case of Re Maryon-Wilson’s Will Trust; Bloefield v St. Hill (1968) Ch 268 at 282 Upgoed- Thomas J said “If the court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice” … The policy rationale behind the age limitation to children under section 13(1) of the Wills Act 1971 (Act 360) proceeds on the understanding that at eighteen a normal child would have been capable of maintaining himself or herself by his or her own effort. The third plaintiff did not fulfil this condition so the age limitation cannot be applied to him.”

From the above, it is noted that the court of appeal is divided on this score and the author takes the respectful view that the minority decision on this appears more convincing and achieves justice seeing as statutes are now supposed to be interpreted purposively having regard to the indication in the Interpretation Act[16], whose section 10 advises that statutes must be construed with the purpose in mind and avoid technicalities which will defeat the purpose and spirit of the Constitution and laws of Ghana. The author is of the humble view that if the case had been decided after the coming into force of the Interpretation Act, their Lordships would have been compelled to construe the said section purposively to achieve substantial justice.

While commending the court in Humphrey Bonsu for making provision for the 1^st Plaintiff spouse under section 13 of the Wills Act, the author takes the view that the majority could have construed the provision to achieve substantial justice in relation to the 3^rd Plaintiff in particular, rather than raising their hands in despair and allowing the natural age of the child to prevail. It is interesting that on 16^th August 1988 the court in the In Re Anim Addo case construed the law purposively and allowed an application under section 13 although probate had not been granted, yet in over about eleven years thereafter on 14^th February, 2000, the Court will construe section in a manner that results in such injustice painful as it seemed. Benin JA delivered himself in this regard thus “Unfortunately, both the second and third plaintiffs were more than 18 years old at the time the testator died. And so by section 13(1) of Act 360 they do not qualify as dependants, however much pain or grief one has for them, especially the third plaintiff. I say this without relish, but that is what the legislation says, there is no ambiguity about it. The rule is that if the language of a statute is clear, it must be enforced however harsh the result appear to be…I believe this case brings to the fore the urgent need to amend this law so that certain handicapped and dependant children, however old they may be, will benefit from their parent’s estate. But so long as the law stands the court is bound to give effect to it notwithstanding the apparent hardship it may cause”. This view the author is unable to agree because their Lordships could have construed the law to achieve substantial justice rather than raise their hands in despair. The Court should have had regard to the purpose of the section and the mischief same was to remedy and be guided thereby. Lord Denning once said “When a defect appears a judge cannot simply fold his arm and blame the Draftsman. He must set to work on the constructive task of finding the intention of parliament and must do this not only from the language of the statute but also from considerations of special conditions which give rise to it, and the mischief with which it was passed to remedy….A judge must ask himself how if the makers of the Act have themselves come across the suck of the texture of it, they would not straighten? He then do as they would have done. The judge must not alter the material of the Act it is woven with, but he can and should iron out the greases.”[17]This the majority in the Humphrey Bonsu case failed to do and hence gave a construction that defeated the whole purpose of section 13 of the Wills Act relative to the third plaintiff and all such persons.

In addition to Section 13(1) of the Wills Act, the 1992 Constitution of the Republic of Ghana also ensures that a spouse is not denied of a reasonable provision from the estate of the spouse whether he or she dies intestate or otherwise. Article 22(1) provides that “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.” This means that, if a spouse fails to make a reasonable provision for the other spouse, and that person dies intestate or testate, the spouse, who had not been adequately provided for, may get some constitutional protection if he or she is able to prove to the satisfaction of a court that she is being denied a reasonable provision out of the estate of his or her late spouse. The 1992 Constitution in Article 22(2) actually mandates Parliament to enact legislation to regulate the property rights of spouse. Although Parliament has failed or refused to enact this legislation, it is believed that when it is done, it will favorably provide details on this aspect of the law.

Both Article 22 of the 1992 Constitution and section 13 of the Wills Act was a subject in the recent case of Akua Marfoa v Agyeiwaa[18] the Court had another opportunity to consider the application of both Article 22 of the 1992 Constitution and section 13 of the Wills Act in making a reasonable provision under the will of a testator. In this case the parties were both married to the late George Asare Ntim who died testate on 15^th July 1995 whose will was read in that same year. The testator gave the respondent and six children jointly a house at Mataheko, two-thirds of his farm at Odwaa near Akokoaso and a portion of his house as well. The testator also gave three rooms in his house at Odwaa and a third of his farm to his children he had with the Appellant but did not give anything to the Appellant. Upon renunciation of the probate by the named Executors, the Respondents applied and obtained Letters of Administration with Will annexed. The Appellant therefore issued a writ claiming reasonable provision to be made for her out of the Will which the court granted, thus “Having found on the totality of the evidence before the court that the testator did not make provision during his lifetime and in his will as required by law and the applicant having come to this court under section 13(1) of the Wills Act, Act 360 and having proved that she was a spouse (wife) of the testator, the court under the authority of section 13(2) of the Wills Act, Act 360, makes the following reasonable provision for the applicant as a charge on or attachment to the estate of the testator the late George Asare Ntim as follows…. ” The Respondent successfully appealed at the Court of Appeal. But upon a further appeal, the Supreme Court reversed the decision of the Court of Appeal and restated the decision of the trial High Court as the correct position of the law. The Supreme Court in that case on the combined effect of Article 22 of the Constitution and Section 13 of the Wills Act had this to say, “The effect of Article 22(1) of the Constitution, 1992 and Section 13 (1) of the Wills Act, 1971 is that even though the testator may have made certain devolutions in his will, if he does not make reasonable provision for either his father, mother, spouse or child under 18 years, and as a result great hardship will befall them, then upon an application to the High Court, the Court may make orders for reasonable provision out of the deceased’s estate for such a person, irrespective of what is in the will.”

Does section 13 of Act 360 and Article 22 of the 1992 Constitution operate to re-write the Will?

On whether any provision made under section 13 amounts to re-writing the testator’s will and exceeding its powers, the Supreme Court in the case of Marfoa v Agyeiwaa said thus “We think that this claim is unfounded and seeks to defeat the whole purpose of section 13(1) of the Wills Act. The High Court has the authority to make such orders which will cause changes to be made in the testator’s will, however as admitted earlier, the exercise of such authority should be guided, and with the sole purpose of preventing great hardship from befalling the Appellant.” Justice Yaw Apau will put it thus “There is no doubt that each and every one has the unchallenged right to distribute his/her self-acquired property the way he/she wants subject to the provisions of section 13(1) of Act 360 and article 22(1) of the 1992 Constitution. To quote the words of a retired Chief Justice of this land Samuel Azu Crabbe in his book, “The Law of Wills in Ghana” published by Vieso Universal (Ghana) Limited, Accra Ghana (1998);” The general rule… is that the court has no power to redraft a will, or add words to it. The duty of the Court is to construe the testator’s will in accordance with the established rules of construction and not to make a new will for him. To relieve the family of the testator from unwarranted hardship, therefore, section 13 was enacted. This section confers a limited power on the court notwithstanding the provisions of the will, to make a reasonable provision for the needs of the testator’s [parents, spouse or children under 18 years of age out of his estate, where the testator had failed to make adequate provision for them.””

Further to Article 22(2) of the 1992 Constitution above, the Constitution also provides in Article 28(1)(b) thus “Parliament shall enact such laws as are necessary to ensure that – (b) every child, whether or not born in wedlock shall be entitled to reasonable provision out of the estate of its parents.”. Admittedly, this provision while it may not directly confer a right of a child over the estate of his or her parents as seen in Article 22 regarding spouses, this Article 28(1)(b) gives a legislative intention to the fact that it is imperative for legislation to be in place to avoid the situation when children are left without any benefit from the estate of their deceased parents.

It is worth noting that the 1992 Constitution is not the first in which such intervention has been made by the Constitution regarding making a reasonable provision from the estate of a deceased for the surviving spouse or children. The third Republican Constitution 1979 provided in Article 32 (2) thus “No spouse may be deprived of a reasonable provision out of the estate of a spouse whether the estate be testate or intestate” So clearly there is a Constitutional history to the current Article 22, save that whereas the current provision is in mandatory terms, the 1979 provision seems discretionary or permissive because of the use of the expression ‘may’. Clause 3 of the same Article 32 of the 1979 Constitution provided that “Parliament shall enact such laws as are necessary to ensure “that every child, whether or not born in wedlock, shall be entitled to reasonable provision out of the estate of its parents”. The Parliament of the third Republic did not last long enough to see the realization of the enactment of that legislation, but it is not to blame seeing as the fourth Republic is over thirty (30) years old and yet nothing concrete has been done in this regard.

The above clearly shows that, the law recognizes the testamentary freedom of a testator and that subject to the Constitutional provision and Statutory provision in the Wills Act, a testator has an unfettered discretion on how to dispose of his or her assets in his or her Will. It is recommended that the scope of persons under section 13 of the Wills Act should be reconsidered to include persons with disability as was seen in the case of Humphrey Bonsu supra.

Conclusion

From the above, one can see that the law guarantees testamentary freedom in a way that a testator is able to dispose of his property in any manner of his choosing.  But this testamentary freedom is not absolute as there are Constitutional and statutory limitations to the exercise of that freedom. Hence the testator is born free, he is free to gift his properties to anyone of his choosing, but he is everywhere in chains, even after death. This is because his testamentary declaration may not be the last word on who gets what from his estate. Man is indeed born free, but everywhere is in chains, even in the grave upon his or her death.

[1] Section 1(1) Wills Act, 1971 (Act 360)

[2] ibid

[3] ibid

[4] ibid

[5] ibid

[6] Supra n. 1 section 3(1)

[7]  Supra n. 2 section 2(1)

[8] Ibid section 2(3)

[9] A.K.P Kludze Modern Law of Succession in Ghana p. 18

[10] [2020] 159 G.M.J 1 SC

[11] Article 22

[12] Supra n. 9

[13] [1981] GLR 393-397

[14] (1989-90) 2 GLR 67

[15]  [1999-2000] 2 GLR 781

[16] 2009 (Act 792)

[17] Seaford Court Estate v Arsher [1949] 2KB 481

[18] (J4/42/2012) [2016] GHASC 84, judgment dated 9^th November 2016