How do we get a child to benefit from a Will that excluded him?
Dear Mirror Lawyer, My niece’s husband died about a year ago. Fortunately, he prepared a Will before he passed.
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Prior to his death, he was very displeased with their 16-year-old son because of a lifestyle he had adopted of which the husband disapproved and even threatened to disown him if he did not change.
Would you believe that in the distribution of his properties under the Will, the late husband made no provision for the son? What can my niece do to enable her son to benefit from his father’s estate?
Doreen, Accra
Dear Doreen, A Will is a document which contains the instructions of a person of full age and of sound mind detailing how his self-acquired property should be disposed of and how his affairs should be managed after death.
The preparation and execution of Wills in Ghana are regulated by the Wills Act, 1971 (Act 360).
When a person dies having prepared a Will, such person is said to have died testate and is thus called a testator. The properties he leaves behind are termed his Estate.
A testator has the freedom to choose who benefits under his Will. He is not bound to leave any portion of his estate to members of his family.
He is at liberty to determine the circumstances and motives by which he makes his dispositions. These rights and freedoms available to a testator are termed as his testamentary freedom.
However, there is a provision in Act 360 which places an exception to the testamentary freedom of a testator. This provision is section 13 of Act 360 which confers power on the High Court to make reasonable provision for the needs of parents, spouses or children below 18 years where the testator failed to make provision for them under his Will.
Before anyone can successfully apply to the High Court under section 13, the court must be satisfied of the following:
- The person applying must be a parent, spouse, or child who must be less than 18 years of age. A child here includes a biological or adopted child or anyone recognised as a child of the testator or any one for whom the testator stands in locus parentis (in place of a parent) or anyone recognised under customary law to be a child of the testator.
- The person must prove that he was a dependant of the testator during his lifetime and that no provision was made for him or inadequate or unreasonable provision was made.
- The person must show that hardship is likely to be caused by this lack of or inadequate provision.
- The person must apply to the High Court within three years from the date on which probate is granted. (Probate is the legal process which allows the person named by the testator to execute his Will and see to the distribution of his properties to prove that the Will is valid, to pay all debts and liabilities and also to identify the testator’s properties and share them as instructed in the Will).
According to section 13(2), the reasonable provision may however include payment of an amount of money, or grant of an annuity (a policy that pays a fixed amount of money every year for the life of a person) or a series of payments, a grant of an estate (any of the assets or property owned by the deceased) or interest in a building or land.
From the foregoing because your son is 16 years, the law allows him to benefit from the father’s estate whether or not provision was made for him in the Will.
So to enable your son to benefit from his father’s estate, you must apply to the High Court within three years after probate is granted, requesting the Court to re-write the Will and order a reasonable provision to be made for him under the Estate.
You must prove to the Court that your son was a dependent of your late husband and that in his Will, he made no provision whatsoever for his maintenance.