Dear Mirror Lawyer, How is the property of a deceased person from a patrilineal community distributed without a Will? Thomas Korle Pecku, Ada-Foah.
Dear Pecku, Distribution of the property of a person who dies intestate i.e. without making a Will, is governed by the Intestate Succession Act, PNDCL 111. This law applies irrespective of whether the deceased hails from a patrilineal or matrilineal community.
If the deceased person hails from a patrilineal community and dies leaving only one house, the law says that house is for the surviving spouse and children absolutely.
If the deceased left more than one house, the surviving spouse and children will select one and partake in the distribution of the rest of the houses according to a distribution formula provided below.
In addition, the surviving spouse and children are entitled absolutely to all household chattels i.e. jewellery, clothes, furniture and furnishings, refrigerator, television, radiogram, other electrical and electronic appliances, kitchen and laundry equipment, simple agricultural equipment, hunting equipment, books, motor vehicles other than vehicles used wholly for commercial purposes, and household livestock.
After selecting one house and the household chattels specified above, any other property owned by the deceased is required to be distributed as follows: The children will take and share 56.25 per cent, the surviving spouse 18.75 per cent, a surviving parent(s) 12.5 per cent of the estate and the remaining 12.5 per cent distributed according to the customary law of the area where the deceased hails from.
The law further provides that where there is no surviving parent, then 25 per cent shall be distributed according to the customary law of the area where the deceased hailed from. What constitutes the customary law of the area is determined by the personal law of the deceased person, i.e. whether he or she hails from a patrilineal or matrilineal community.
In patrilineal societies in Ghana, the law is that children inherit the estate of their parents as of right and in the absence of any child, then, it is the brothers and sisters of the deceased traced through the male line.
It appears from the law that after the children of the deceased have benefited from other provisions made for them in the law, they then benefit as well from the share set apart to be distributed according to the customary law of the area where the deceased hails from.
The issue as to who constitutes the family in the patrilineal society has been a subject of controversy before the courts.
The controversy stems from doubts expressed as to whether the enjoyment of the portion allocated to the family is limited to the children alone and thus excludes other members of the paternal family such as the brothers and sisters of the deceased traced through the male line.
In the case of Amponsah v Budu [1989-90] 2 GLR 291, Amua-Sekyi JSC at page 293 stated that:
“In a patrilineal family, a person’s immediate family consists of his father, his brothers and sisters being children of his father, and the children of his brothers; his wider family consists of his immediate family and the immediate families of all those who trace their ancestry through males from the common male ancestor.”
However, Aikins JSC in the same case at page 298 explained those entitled to benefit in the following words:
“In patrilineal societies the self-acquired property of a male person who dies intestate devolves not on the whole patrilineal family but on his immediate family, both as to title and as to rights of beneficial enjoyment. Generally, but not as a rule of rigidity, the group which is normally regarded as being beneficially entitled to such property is the group which is most proximate, i.e. his children.
In the patrilineal community, those who belong to a man’s family are his children (male and female), his paternal brothers and sisters, children of his paternal brothers, his paternal grandfather and the descendants of the paternal uncles in the direct male line.”
Another controversy is the status of the distribution where the deceased is a man married to several women under customary law with children by different women.
Where the deceased is legally married to several women under customary law, all the wives will share the portion of the estate allocated to surviving spouse.
Girlfriends, mistresses, concubines and the like are, however, precluded from any entitlement in the estate.
In the case of children, the law provides that every child, whether born in or out of wedlock, is entitled to a share in the portion allocated to surviving children.
