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Do I have a share of my ex-husband's property?
During his lifetime, he amassed a wealth of property.
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Five years ago, while we were still married, he informed me and showed me a copy of his will which he had signed in the presence of his best friend and our pastor.
In the will, there was a sentence which stated: “I give my house at Number 10 Chain Homes, TseAddo to my wife Ohemaa No Size whether our marriage is terminated or not.”
Lawyer, he did not mention me by name but all our friends and family know that it was my ex-husband’s nickname for me.
Unfortunately, a few years ago, I caught him in bed with his secretary and filed for divorce which was finalised last year.
To the best of my knowledge, my ex-husband did not change his will before he passed on.
Lawyer, I need your advice.
Ohemaa Cynthia,
Asokwa, Kumasi.
Dear Ohemaa, Two main laws govern the distribution of property of deceased persons.
The Wills Act 1971, Act 360 and the Intestate Succession Act, 1985 PNDC Law 111.
When a person dies and leaves behind a will, that person is said to have died testate and the Wills Act will be used to govern the distribution of the estate of such a person.
The latter act is used when a person dies without a will.
Section 7(1) of the Wills Act provides that a will shall take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.
Therefore, if a testator makes a bequest for example in the year 2000, that he is giving his property to his children and in the year 2000 he had two children but later on he went on to have three additional children, then at the time of his death, he would have five children.
The five children would inherit the property unless the testator expressly states the names of the two children as those to inherit the property.
Section 9 of the Wills Act provides various ways in which a testator may revoke his will.
These include the following: by physical destruction, a written declaration of intention to revoke and by making another will and stating that all former wills have been revoked.
When a will is revoked, it ceases to have effect.
Furthermore, section 38 Matrimonial Causes Act 1971 (Act 367) provides that, any gift to or in favour of one spouse in the will of the other shall be invalidated if the marriage has been terminated under the Act by divorce or annulment, unless the will contains an express provision to the contrary.
From your narration, it appears that your ex-husband left behind a will, consequently, the Wills Act is the main piece of legislation that will guide the distribution of the estate of your deceased ex-husband.
As stated above, the will that your ex-husband made will only take effect after his death, provided he did not revoke it.
I would first advise you to be diligent and find out if your late ex-husband revoked the will before he passed away.
If he did, then that first document will not have any effect.
However, if he did not, then I would stand on the strength of Section 38 of the Matrimonial Causes Act that even though your marriage was dissolved, the expression “…whether our marriage is terminated or not,” indicates that your ex-husband intended for you to have the house at Chain Homes, in spite of the divorce.
