How can I benefit from my husband’s Will?
Dear Mirror Lawyer, I live with my two children, Kwame and Adjoa.
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My husband died sometime last year, and things have been very difficult for me over the past few months.
I am a petty trader, and my two children are all in school. My husband owned farms and hotel businesses in Accra, and I had expected that he would have gifted them to me to take care of our children.
Imagine my surprise when my husband’s Will was read, and it turned out that he had gifted all his properties to his nephews and nieces. Not even a single property was left behind for his immediate family.
I have pleaded with his relatives to at least allow me to manage one of the farms to sell the crops to make ends meet, but they refused all my requests. My sister, who is currently studying at the University of Ghana, tells me that under the country's laws, I can obtain an order to take back all my late husband's properties.
Is that the law? Please advise me. Jennifer Quarshie, Kwabenya, Accra.
Dear Jennifer, In Ghana, the proper manner for making a Will and its rules are governed by the Wills Act, 1971, Act 360. Generally, whenever a testator makes a Will, the court gives effect to the Will as it stands and does not interfere with it.
However, there are some instances where the court can interfere with a Will. Under section 13 of Act 360, the dependents of a testator may apply to the High Court for a provision to be made for their maintenance if no such provisions were made for them in the Will and no reasonable provisions were made for them by the testator during his or her lifetime.
The law defines the dependents in this context as a father, mother, spouse or child under 18 years of age of the testator. What this means is that only this category of persons may apply to the court for reasonable provision to be made out of the estate of the testator when no such provision is made.
Note that the application must be made not later than three years after probate of the Will is granted. If the High Court is of the opinion that the testator did not make reasonable provision for the dependents either during his lifetime or by his Will, which may cause hardship, the High Court, after considering all relevant factors, may make reasonable provision for such dependents out of the deceased's estate.
Such reasonable provision that the Court may make includes payment of a lump sum, whether immediate or deferred, a grant of an annuity or a series of payments, or a grant of an estate or interest in immovable property for life or any lesser period.
So anyone that seeks to apply for provision to be made for them out of the estate of a testator must prove:
• That the applicant is a dependent of the testator
• That the application was brought within three years after the grant of probate
• That the testator failed either during his lifetime or by his Will to make reasonable provision for the applicant
• That the applicant is suffering or likely to suffer hardship and
• That having regard to all the relevant circumstances, the applicant is entitled to support out of the testator's estate.
This means that you may apply to the High Court for reasonable provision to be made for you and your children. However, it is not correct that the High Court will give back to you all the properties of your late husband.
