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In-law wants me, children out of matrimonial home

BY: Mirror Lawyer
The Wills Act, 1971 (Act 360) deals with all issues regarding wills
The Wills Act, 1971 (Act 360) deals with all issues regarding wills

Dear Mirror Lawyer, My husband and I had been married for 15 years when he suddenly passed away.

We have two young daughters who are 12 and 10 years old.

The executors were granted probate about a month ago but the problem is that my late husband left all his property to his two brothers.

The Will was made before we got married and it appears my late husband never updated it to even include our girls.

His brothers have given me three months to leave my matrimonial home.

I have not even grieved my husband properly and now I have to deal with becoming homeless with my children.

Although I am a trained nurse, I stopped working after we had our first child.

My husband was therefore the sole breadwinner of the family.

I currently have no way of providing for myself and my children.

Please advise me on what to do in order to cater for myself and my children.

Adwoa Mansa, Adenta

Dear Adwoa, I am sorry for your loss and the predicament in which you find yourself.

Wills in Ghana are governed by The Wills Act, 1971 (Act 360) and as long as a Will is valid, the courts will not interfere with the wishes of the testator.

There are, however, instances like yours where a spouse or a young child who is dependent on the testator is left out of the Will.

In such cases, the law makes provision for such dependants despite the fact that a testator has the right to choose beneficiaries to his estate.

This provision in the law can be found in Section 13 of The Wills Act, 1971 (Act 360).

It states that an application can be made before the High Court, not later than three years from the date on which probate of the Will is granted, for a reasonable provision to be made out of the estate of the testator.

There are, however, specific categories of dependants who are qualified to bring such an application.

These are the spouse and parents of the testator as well as children of the testator who are under the age of 18.

This, therefore, means that a child of the testator who is 18 years old or older and has not been named as a beneficiary to the Will of a testator cannot apply for a reasonable provision.

It is, however, not enough to be a dependant who was not named as a beneficiary in a Will.

According to Section 13 of The Wills Act, 1971 (Act 360) the court also has to be satisfied that hardship will be caused if a reasonable provision is not made for the dependant out of the estate of the deceased.

Consequently, although your husband named his brothers as the beneficiaries to his estate, as his wife you can apply to the court on behalf of yourself and your daughters, requesting that a reasonable provision be made out of your deceased husband’s estate.

It will be prudent to bring to the court’s attention that your husband was the sole breadwinner of your family, as this can inform the court that being left out of his Will is going to bring hardship to you and your daughters.