Requirements of A Valid Will in Ghana

The Wills Act, 1971 (Act 360) provides for the essential requirements of a valid Will in Ghana. The law also deals with other related matters.

You can buy a copy of the Wills Act, 1971 (Act 360) here.

A Will is a written legal document that lets a person decide how their properties are dealt with after death. A Testator is a person who makes a will.

Do I Need A Lawyer to Make A Will?

It is advisable to engage the services of a Lawyer to make a Will but it is not compulsory. If you possess the legal knowledge, training and experience, then you can make your own will.

Please note that it is a criminal offence for a person who is not a lawyer to prepare legal documents for another person. This means that you can prepare your own legal documents if you have the knowledge and experience to do so, but only a licensed Lawyer may prepare legal documents for another person.

Cost of Making A Will in Ghana

The costs involved in making a Will are in two stages. The Legal fee paid to your lawyer and the Registration Fee paid to Court for safe storage of the Will.

Legal Fee

The 2022 GBA Scale of Legal Fees provides the most current guide for legal charges in Ghana. The Ghana Bar Association determines the legal fees of lawyers. The Scale of Fees act as a guide for lawyers and clients.

The maximum charge for a simple Will is GHc6,000.00 and the maximum charge for a complex Will is GHc18,000.00.

Please note that apart from the main legal fee, hourly rates may also apply.

Registration Fee

The High Court charges a small fee of GHc50.00 for registration and safe storage of the Will. You will learn more about the registration later in this post.

Requirements Of A Valid Will

The Ghana Law will only recognize the validity of a Will if it is made in accordance with the Wills Act. The requirements of a valid Will under the Will’s Act are summarized below,

Capacity to Make A Will

The Testator must have capacity to make a Will. This means that the person must be of age and of a sound mind.

Age – The Testator  must be eighteen (18) years or above at the time of making the Will. A will made by a minor is not valid in Law.

Sound Mind – The Testator must also be of sound and sober mind at the time of making the Will. This means that if the Testator is intoxicated, delusional or in any way mentally incapacitated at the time of making the will, then it is not valid.

In Writing

The Will must be in writing and signed by the Testator. If the Testator has more than one signature, then they should use their official signature to sign the Will.

There are some people who for some reason are unable to read and write, or sign a signature. Some other people may be unable to speak or write English.  For such persons, they may engage a professional writer or translator to put the Will into writing for them. In this kind of situation, the Testator will have to thumbprint the Will. The professional will have to swear a Jurat next to the Testator’s Thumbprint.

Witnesses

Two (2) witnesses must attest the Will. The witnesses do not need to see or know the contents of the Will. They only sign to confirm that the Testator is truly the one signing the Will in the proper capacity. The witnesses shall attest and sign the Will in the presence of the Testator.

Executor

The Testator may appoint an Executor of the Will. The Executor has the responsibility to administer the Will and distribute the estate in accordance with the Will. The Executor should be a person who is at least twenty-one (21) years of age.

After Making the Will What Next?

Attachments

The Testator may attach other documents to the Will and properly name and identify them in the Will. eg., Site Plans, Indentures, Deeds etc.

Alteration

All alterations, modification or changes made in a Will will not have effect unless they are separately made in the same manner as the Will. This means that if it is detected that there are cancelations and other alterations in ink or writing over text which is already written, the changes will not be acknowledged, only the original text of the Will will be acknowledged.

Changes and alterations will be accepted only if they are made in a separate document in the same manner and by the same people as the original Will itself. A codicil can also be made to deal with such alterations. This is a separate document which incorporates the intended alterations.

Sealing

After the Testator and the witnesses have all signed the Will, it must be sealed. This is usually done in an envelope with a wax seal.

The reasoning is that after the demise of the Testator, when the Will is being read, the unbroken seal will be reasonable proof that the Will has not been tampered with.

The seal must therefore be well-done and durable. It must also be resistant to moisture damage and changes in temperature.

Custody or Registration of A Will

A Testator may deposit/register his own Will in the High Court of Ghana for safe custody. The Registrar will give the Will a registration number after a fee of GHc50.00 has been paid. The Will will then be deposited into storage at High Court.

After the death of the Testator, the family may write to the Registrar and arrange a Reading of the Will. This is a small ceremony at the office of the Registrar where the Will is unsealed and the contents will be read out for the first time.

If you have in your possession a Will belonging to a deceased person, the Ghana Law requires that you must deposit it with the High Court. You are given fourteen (14) days after the date of the death of the Testator to surrender the Will to the High Court. Failure to do so is a criminal offence and offender may be fined or jailed upon conviction.

Revocation

There are different ways of revoking a Will. The Testator may revoke the Will by,

• tearing, burning, shredding or by some other method destroying all copies of the Will with the intention of revoking it.
• directing another person to destroy the Will in the presence of the Testator and with the intention of revoking it.
• a written declaration of the intention to revoke the Will which must be made in the same manner as the Will.
• making another Will and revoking all previous Wills in the new Will.

Video Will

Inheritance litigation is rampant in Ghana in recent times. Dis-inherited family members are known to arbitrarily challenge the validity of a Will. Sometimes without any factual or legal basis. In some cases, this leads to prolonged litigation and the estate is left to waste whilst the family battles in Court.

As a counter to this, some Lawyers have developed a practice of adding a Video Will as a companion to the written will. The idea is to strengthen the credibility of the written will in the event that it is challenged after the demise of the Testator. Therefore, the Video Will is not one of the requirements of a valid will but may support a valid will.

A Video Will usually captures the Testator identifying himself, reading the contents of the written Will out loud, confirming that he endorses the same, and then signing the Will with his signature. The video will should also capture the witnesses identifying themselves out-loud and signing their respective signatures.

The intent is that if the written will is ever challenged, upon production of the video will, all opponents will be effectively silenced.

Please note that a Video Will is not full proof, there are legal and procedural techniques that may be used to discredit even a Video Will. This means that the Video Will must be made to measure up to standard and cannot just be an amateur recording.

Conclusion

Like all laws, there are varying exceptions to these basic requirements of a valid will. Every situation is unique and the Courts will determine every dispute or question on its own merits.

However, the Wills Act, is a standard and provides the criteria for assessing whether a Will is valid or not.