INTRODUCTION
The death of a loved one is an emotional experience for the families and friends of the deceased person. In Ghana, it often triggers more than just grief. When a person dies without a will, the distribution of that person’s estate falls under the rules of intestate succession governed primarily by the Intestate Succession Law, 1985 (PNDCL 111). Intestate succession plays a critical yet often misunderstood role in shaping the future of surviving families.
There are two forms of intestacy that the law recognizes; total intestacy and partial intestacy. Total intestacy occurs where a deceased dies without leaving a will. Partial intestacy on the other hand occurs when a deceased’s estate is partly distributed in accordance to their will and partly distributed under the rules of intestate succession.
While the Intestate Succession Law, 1985 (PNDCL 111) was enacted to protect surviving spouses and children from the harsh effects of customary succession rules, four decades of implementation have revealed both its strengths and limitations. Although the law has significantly improved inheritance rights in Ghana, modern family structures, polygamous marriages, cohabitation arrangements and practical difficulties in estate administration continue to generate disputes and uncertainty.
This article examines the impact of PNDCL 111 on Ghanaian families, evaluates its successes and shortcomings and highlights the importance of wills as a more effective tool for estate planning.
Purpose and History of the Intestate Succession Law (PNDCL 111)
The Intestate Succession Law, 1985 (PNDCL 111) was introduced to reform the law relating to intestate succession in Ghana. It sought to resolve some long standing issues affecting the inheritance of property and the status and rights of wives and children.
Prior to its enactment, customary law determined how a deceased’s estate was to be shared which often disadvantaged surviving spouses and children, particularly under matrilineal and patrilineal systems. In, Andrews v Hayford [1982-1983] GLR 214, the court’s position at the time was that the deceased having died intestate, his self-acquired properties became his family properties to be enjoyed by members of his immediate family. Again, in In Re Ackom-Mensah (Decd); Ackom-Mensah v Abosompem and Another (1973) 2 GLR 18, Hayfron-Benjamin, J as he then was described the plight of widows and children under the customary law, when the husband and father dies without a will as follows; “The fertile field for the 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. These 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 dues, 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. Shakespeare’s Hamlet might well have included funeral custom in Ghana among those slings and arrows of outrageous fortune that help to make death itself a consumption devoutly to be wished.”
PNDCL 111 sought among others to ensure the fair distribution of the self-acquired properties of an intestate and protect surviving spouses and children. It also provides uniform rules for intestate succession applicable to all Ghanaians and reduces litigation by providing a clear guideline for the distribution of an intestate’s properties. It also preserves part of the estate for the nuclear family while allowing the extended family to inherit a portion which was not so before the passage of the law. The law applies only to self-acquired property, but does not apply to stool, skin and family property, according to section 1(2) of PNDCL 111.
The passage of the Intestate Succession Law, 1985 (PNDCL 111) reflected the Provisional National Defence Council (PNDC) government’s attempt to conform with international standards and recommendations that urged a review of legal codes relating to rights of women and children in order to end discriminations against them.
Advantages or Benefits of the Intestate Succession Law, 1985 (PNDCL 111)
Since its enactment, PNDCL 111 has played a pivotal role in safeguarding the rights of surviving spouses and children in Ghana. The law has ensured that many widows, widowers, and children are not unfairly deprived of their share of a deceased’s estate by extended family members-a common occurrence before its passage.
One of the most progressive features of PNDCL 111 is the protection afforded to surviving spouses and children through the automatic vesting of household chattels and in certain circumstances, the matrimonial home. These assets do not form part of the residue to be distributed under the statutory fractions. The provision seeks to ensure that the immediate family is not rendered homeless or deprived of essential household items upon the death of a breadwinner.
Over the years, numerous cases before the courts have demonstrated the significant impact of this law, providing justice and relief for families left vulnerable when a loved one dies without a will. A case is in point is the case of Madam Akosua Agyentoa v Diana Owusu and Daniel Owusu Civil Appeal No. 2/96, 31st march, 2004. In the said case, the Supreme Court assisted children of a deceased man to retain their father’s portion of a property. The Court held that “Section 4(1) PNDC Law 111 stipulated that on the death intestate of any person, his wife and children should inherit his property. It follows that in this case the Respondents, children of late Owusu, are entitled to his share of the house and not to his sister as was the law prior to 1985.
Challenges and Shortcomings of the Intestate Succession Law, 1985 (PNDCL 111)
Despite its laudable objectives and significant achievements, PNDCL 111 is not without its challenges. Over the years, practical difficulties in its implementation have exposed certain weaknesses that continue to affect families and generate litigation.
Polygamy and the Complexity of Modern Family Structures
One of the most significant criticisms of PNDCL 111 relates to its treatment of polygamous marriages and the realities of contemporary Ghanaian family structures. The law appears to have been drafted on the assumption of a simple nuclear family model consisting of one spouse and children. This assumption does not reflect the realities of Ghanaian society where customary marriages are potentially polygamous and where deceased persons may leave behind multiple spouses, children from different mothers, children born outside marriage, adopted children and dependents from previous relationships.
Inadequate Protection of Surviving Spouses
Although PNDCL 111 was enacted primarily to improve the position of surviving spouses, particularly widows, it does not always achieve this objective.
The law's distribution formula may leave surviving spouses in vulnerable positions, particularly where there are children from multiple relationships. Under the law, a surviving spouse may be required to share a house and household chattels with all the deceased's children, including those born outside the marriage and those with whom the spouse may have had little or no relationship.
This can produce harsh outcomes where the surviving spouse contributed significantly to the acquisition or improvement of the property during the marriage. Instead of securing exclusive occupation of the matrimonial home, the spouse may find herself sharing ownership with several beneficiaries whose interests conflict with her own
Inadequate Protection for Cohabiting Partners
The law primarily recognizes legally married spouses. Consequently, individuals who have cohabited with a deceased person for several years without formalizing their relationship may find themselves excluded from inheriting under PNDCL 111. Given the increasing prevalence of informal unions in contemporary Ghanaian society, this limitation often results in hardship and perceived injustice.
Conflicts Between Customary Law and Statutory Law
Although PNDCL 111 was intended to provide uniformity, customary law considerations continue to influence family expectations and conduct. In many communities, extended family members still assert customary rights over a deceased person's estate, sometimes contrary to the provisions of the law. This often creates tension between the nuclear family and the extended family and may culminate in unnecessary litigation.
Distribution May Not Reflect the Wishes of the Deceased
Perhaps the greatest limitation of intestate succession is that the law applies a predetermined formula regardless of the deceased's personal wishes. A person may have intended to provide more substantially for a particular child, a dependent relative, a charitable cause, or a long-term partner. However, once the individual dies intestate, those wishes may never be realised.
The Problem of Ratio Distribution
A recurring practical difficulty under PNDCL 111 concerns the statutory fractions used in distributing the residue of an estate. Under section 5 of PNDCL 111, where the deceased is survived by a spouse and children, the residue of the estate is distributed as follows:
- Three-sixteenths (3/16) to the surviving spouse;
- Nine-sixteenths (9/16) to the surviving children;
- One-eighth (1/8) to the surviving parent; and
- One-eighth (1/8) to the customary family.
While the formula appears straightforward on paper, its application becomes problematic where the estate consists primarily of indivisible assets such as houses, farms or businesses.
Determining what constitutes 3/16, 9/16 or 1/8 of a single property is often impossible without first converting the asset into cash. Consequently, beneficiaries are frequently compelled to sell valuable family property merely to facilitate distribution according to the statutory formula.
This problem undermines one of the law's objectives, namely the preservation of family property for future generations. Instead of maintaining productive assets, families often find themselves disposing them off to satisfy mathematical distribution requirements.
The Impact of Intestacy on Modern Ghanaian Families
The structure of Ghanaian families has evolved considerably since the enactment of PNDCL 111 in 1985. Today, many families are blended, with children from different relationships, customary and ordinance marriages, and dependants who may not neatly fit within the categories contemplated by the law.
In such circumstances, intestacy often becomes a source of family conflict rather than family protection. Disagreements over property distribution can strain relationships among siblings, spouses and extended family members. Litigation may consume significant portions of the estate, leaving less for the beneficiaries themselves.
Moreover, businesses owned by deceased persons frequently suffer when there is no clear succession plan. Family members may disagree on management and ownership, resulting in operational disruptions and financial losses. In some cases, thriving family businesses collapse entirely due to succession disputes.
Evaluation
The challenges identified above do not diminish the historic significance of PNDCL 111. The law undoubtedly transformed inheritance rights in Ghana and provided much-needed protection for surviving spouses and children. However, the experiences of the past four decades reveal that the law is not fully responsive to the complexities of modern Ghanaian families. These shortcomings underscore the importance of comprehensive estate planning through wills and highlight the need for legislative reforms that better reflect contemporary social and economic realities.
Why Every Ghanaian Should Consider Making a Will
While PNDCL 111 provides an important safety net, it should not be viewed as a substitute for proper estate planning. A valid will remains the most effective tool for ensuring that one's wishes are respected after death.
A will enables a person to:
- Determine how property should be distributed.
- Appoint guardians for minor children.
- Protect vulnerable dependants.
- Minimize family disputes.
- Facilitate a smoother administration of the estate.
- Preserve family businesses and investments.
- Reduce uncertainty and litigation.
The making of a will also provides peace of mind. Rather than leaving important decisions to statutory formulas or family negotiations, an individual retains control over the disposition of his or her estate.
Indeed, many of the disputes that arise under PNDCL 111 could have been avoided if the deceased had taken the simple but important step of preparing a valid will.
The Need for Further Reform
Although PNDCL 111 represented a significant milestone in the protection of spouses and children, there is room for reform to reflect changing social realities. Consideration may be given to:
- Enhancing protections for long-term cohabiting partners.
- Clarification of inheritance rights in polygamous marriages.
- Simplifying procedures for estate administration.
- Strengthening public awareness of inheritance rights.
- Improving mechanisms for proving customary marriages and paternity.
- Promoting alternative dispute resolution in succession matters.
- Digitization of probate and letters of administration processes.
- Public education on wills and succession planning.
- Consideration of a review of the statutory fractions.
Such reforms would further the original objective of the law while adapting it to the realities of modern Ghanaian society.
Conclusion
More than four decades after its enactment, the Intestate Succession Law, 1985 (PNDCL 111) remains one of the most important pieces of social legislation in Ghana. It transformed inheritance law by protecting spouses and children from the harsh consequences of certain customary succession rules and established a fairer framework for the distribution of intestate estates.
However, the law is not a perfect solution. Family disputes, administrative delays, changing family structures and the inability of the law to capture the personal wishes of the deceased continue to present significant challenges.
Ultimately, while PNDCL 111 serves as a valuable safeguard, it should be regarded as a default mechanism rather than a preferred estate planning tool. The best way to protect loved ones, preserve family harmony and ensure that one's legacy is distributed according to personal wishes is through the preparation of a valid will. In the end, making a will is not merely a legal exercise; it is an act of responsibility, foresight and care for those who remain behind.
The experience of the past four decades demonstrates that while PNDCL 111 provides an essential safety net, no statutory formula can adequately capture the unique circumstances and wishes of every individual. The law determines who should inherit, but it cannot determine what the deceased truly intended. For that reason, every Ghanaian should regard the preparation of a valid will not as a matter reserved for the wealthy or elderly, but as a necessary step in responsible family and estate planning. In many cases, the greatest gift one can leave behind is not merely property, but certainty, harmony and protection for those who remain.