Intestate Succession Law
(PNDLC 111) & Mohammedan Law
Justice Alexander Osei Tutu
Outline
• Background
• Introduction to the Law
• Scope & Application of the Law
• Reserved Portions
• General Formulae for Distribution
• Small estates
• Grandchildren
• Survivorship
• Offences
• The Challenges & Weaknesses
• The Aftermath
• Mohammedan Law
Background & Introduction
The Objective of the Statute was
- to determine intestacy and to substitute for indigenous legal practices
on inheritance after death in Ghana
- It came along with three other laws:
The Customary Marriage and Divorce (Registration) Law (PNDC Law
112),
The Administration of Estate (Amendment) Law (PNDC Law 113) and
The Head of Family (Accountability) Law (PNDC Law 114).
- The law thus renders marriage type irrelevant when it comes to the
distribution of the estate of a deceased person. It therefore explicitly
repeals Sections 48 and 10 of the Marriage Ordinance and
Mohammedan Marriage Ordinance respectively.
Cont’d
- The justification for such legislative intervention appears in the Intestate Succession
PNDC Law 111, 1985 Memorandum, among other things, aimed at removing the
anomalies in the present law relating to intestate succession and to provide a
uniformed intestate succession law that will be applicable throughout the country
irrespective of the class of the intestate and the type of marriage contracted by the
deceased person.
- As a statute, PNDC Law 111 supersedes any reforms on the rules of indigenous law in
as much as the latter affects inheritance.
Kwako v. Tawiah [2001-2002] 1 GLR 339, S.C. @ 355
“PNDCL 111 has changed the face of the law on succession under intestacy. The old law,
prior to PNDCL 111 was generally that upon the death intestate of a Ghanaian, his self
acquired property became family property. The family appointed a successor to
administer the estate on behalf of the family. The system under the customary law was
fraught with problems and anomalies and offered very little protection to the nuclear
family, i.e. husband, wife and children. PNDCL 111 was passed to reverse the situation”
- Per Adzoe JSC
Scope & Application
• PNDC Law 111 deals with the distribution of the estate of a person who dies without a
testamentary disposition of his/her self-acquired property. (Section 2 (1).
• For meaning of self-acquired property, see section 18 on ‘estate’
• What if the deceased person disposed of his estate under samansiw?
- Sections 2 & 18 - meaning of a will.
• PNDC Law 111 was gazetted and came into being on 14th June, 1985.
Kwako v. Tawiah [2001-2002] 1 GLR 339, S.C. @ 355
“PNDCL 111 does not apply to all where the deceased leaves behind a valid will, except in
cases where the will does not cover all his property, in which event the deceased is said to
have died partially intestate and PNDCL 111 will then apply to that part of the property which
is not disposed of in the will: see section 2 of PNDCL 111.” - Per Adzoe JSC
• The law does not apply to family, stool or skin properties (Section 1 (2).
Devolution of the estate of an intestate deceased who
died before the coming into force of PNDCL 111
• Section 21
Armah v. Armah [1992] 2 GLR 53
“Indeed, once the properties of a deceased have not been distributed among those
entitled thereto, it can safely be said, in my view, that at least in the eyes of the
customary law, the matters pertaining to the distribution of those properties constitute a
matter pending before the deceased’s head of family.” - Per Adjabeng JA
Abdul Rahman Giwa & 2 Others v. Baba Ladi (2012) 43 GMJ 1 @ 29
“In the face of these findings of the trial Court and having regard to the Court’s view on
section 21 (1) of PNDCL 111, I conclude that the provisions of the Act are applicable to the
distribution of Fatima Suka’s estate….” – Aduama Osei J.A
Giwah v. Ladi [2013-2014] 2 SCGLR 1139 @ 1154-1156, S.C. – Per Benin JSC
Contrast with
In Re Asamoah (Dec’d) Agyeiwaa & Ors. v. Manu [2013-204] 2 SCGLR 906
Holding 6: “The Court of Appeal was right in its view that the Intestate Succession
Law, 1985 (PNDCL 111), was inapplicable to the case which had originated in 1972,
thirteen years prior to the promulgation of the law….”
– Per Akamba JSC
Ansaba v. Mbeah & Others [2010-2012] 1 GLR 682 @
Holding 5 – Per Marfu Sau JA..
Agyentoa v. Owusu [2005-2006] SCGLR 383 @ 387
“The law which was applied by the Court of Appeal in arriving at its decisions was
the Intestate Succession Law, 1985 (PNDCL 111), which was passed during the course
of hearing of this case, PNDCL 111, s. 21 thereof stipulated that the provisions of the
said statute were to be applied to any case of succession pending before the courts
after its passage. The instant case was pending on 5 July 1985 the case having
commenced on 12 April 1985 and the Court of Appeal had to apply the provisions of
that law.” – Bamford Addo JSC
Reservation for the Nuclear Family
The following are exclusively reserved for only the spouse(s) and children
a. One House (House is defined under the schedule of the Children’s Act to include
an immovable property for dwelling purposes.
b. All Household chattels like furniture, implements, books, jewelry, household
livestock, home appliances, simple agricultural tools, clothing and other things
used in the house.
c. All private cars
• If there is more than one house, then the surviving spouse and children choose first
before the sharing of the remainder.
• Any sharing to be in equal share (Section 14)
• All other properties constitute the remainder.
• SEE Appau v. Ocansey [1993-94] 2 GLR 271
• Yakah & Anor. v. Uboh [2008-2009] 1 GLR 166 @ Holding 3
The Current Justification
a. For Spouses
Article 22 (1) of the 1992 Constitution “a spouse shall not be deprived of a
reasonable provision out of the estate of a spouse whether or not the spouse
died having made a will”
b. For Children
Article 28 (b) & (c) of the Constitution
Children’s Act, 1998 (Act 560)
S. 2 – The Best interest of the child to be paramount in all matters
S. 7 - The Right to Parental Property, whether born in wedlock or not
S. 76 – Adopted Children
S. 124 – Definition of ‘parent’ encompasses natural and persons in locos
parentis
Who is a Spouse?
• Essilfie v. Quarcoo [1992] 2 GLR 180 @ holding 2,
Lutterodt J. (as she then was).
Note the three types of marriages in Ghana and their
effect
a. Marriage under the Ordinance (Strictly Monogamous).
b. Customary marriages (Potentially polygamous)
c. Mohammedans Marriage (Potentially polygamous of
up to 4)
Who is a child in Ghana?
Common Law position
a. Distinction between legitimate and illegitimate child.
b. Illegitimate children not entitled to the estate of their father
Ghanaian Position
c. Anybody recognized by the deceased person as his child during his lifetime.
d. Whether or not the person was born in wedlock. See Schedule 7 of the Children’s Act.
e. Authority? In Re Koranteng-Addow (Dec’d; Koranteng Addow v. Addow [1992] 1 GLR
370, H.C. @ holding 2, per Omari-Sasu J.
f. Meaning of the phrase ‘surviving child’ in PNCDL 111
Yakah & Anor. v. Uboh [2008-2009] 1 GLR 166; Yankah & Ors. v. The Registrar & Ors.
[2009] 5 GMJ 128
Holding 1 – ”the son and daughter of the deceased who are alive or may be alive.”
Child also encompasses natural, artificial and persons in loco parentis (Section 18).
Provision for child (ren) undergoing training or
in School
• See Schedule of the Children’s Act, 1998 (Act 560)
• Reasonable provisions to be made for the above
children who are minors before the distribution.
Social Security Contributions/Benefit
• A child of school going age to get 60% and the
person nominated 40%.
The Distribution of the Remainder
No Spouse
All 4 Parties:
a. Children ¾
a. Spouse 3/16 b. Parents 1/8
b. Children 9/16 c. Customary law 1/8
c. Parents 2/16
d. Customary law 2/16 No Child & Parents
d. Spouse ½
No existing Parent e. Customary law ½
e. Spouse 3/16
f. Children 9/16 No Spouse, Child & Parent
g. Customary law 1/4 a. Customary law 1
None of the above
No Child
The Republic of Ghana
h. Spouse ½
i. Parents ¼ (Dependents can bring an application for a portion
of the estate) (Section 11 (3).
j. Customary law ¼
Kwako v. Tawiah [2001-2002] 1 GLR 339
• Holding 5: “The Intestate Succession Law, 1985
(PNDCL 111) had changed the customary law rule
that generally upon the death intestate of a
Ghanaian, his self-acquired property became family
property which the family appointed a customary
successor to administer on its behalf. PNDCL 111 itself
provided the scheme of distribution giving priority to
the surviving spouse and children over all other
beneficiaries. In that scheme of distribution, only a
small fraction devolved in accordance with customary
law”. - Adzoe JSC
Family under customary law (Section 11)
a. Matrilineal or Patrilineal? (Section 10 (a).
b. If the two, then both (Section 10 (b).
c. If none, then the one the deceased identified
himself during his life time (Section 10).
Small Estates (Section 12)
What is small estate under the law now? – Where the entire
estate is not more than GH¢1,000.00
How is it disposed of?
a. Spouse and/or Child solely benefit
b. Where there is no Spouse or Child, but the Parent is alive,
he or she takes it.
c. The Attorney General may by a Legislative Instrument vary
the value when she deems fit.
Survivorship (Section 15)
• The eldest of the two spouses is presumed to have died
first in circumstances of commorientes.
Yakah & Anor. v. Uboh [2008-2009] 1 GLR 166 @ 177
“I must hasten to add that section 15 of PNDCL 111
anticipated rights of survivorship for purposes of inheritance.
Thus even if G had died at the same time as his father, P, since
P was older, he would be presumed to have predeceased G
under PNDCL 111, and G would have had an accrued
inheritable interest in P’s estate.” Per Kusi Appiah J.A.
• What then would be the effect?
Grandchild
Where the child of the deceased died before the
latter and left behind a child who was taken care
of by the deceased, he/she gets the portion of
his/her parent, if he was dependent on the
grandparent at the time of his death.
What portion can he get?
Either the whole or portion as would have devolved
unto the parent, if he had survived the parent
Offences
• Before the distribution of the estate, no person shall,
whether the decedent died intestate or testate, eject a
surviving spouse or child from the matrimonial home.
• The punishment against such an offender is payment of
between 5 and 50 Ghana Cedis or a term of
imprisonment not exceeding one year.
• And court re-instate or re-imburse the spouse or child
• Intermeddling – an offence
Restriction of Ejection of spouse & child from
matrimonial home (Section 16A)
a. Self-Acquired Property? – Total Prohibition
b. Rented Premises? – Only by a Court’s Order
c. Family Premises? – Six months after the death of the deceased.
d. Public Property? – Three months after the death of the
deceased.
What does the matrimonial home mean? (S. 16A (2) - Where the
deceased and the spouse and/or child were living at the time of
death.
Challenges & Weakness
[Link] of our traditional system
2. Law does not share funeral & other testamentary expenses
3. There is no provision in the law to address a spouse or a child who facilitated the death so as to benefit
4. Conflict between the nuclear family and the extended family.
5. Who is a child?
6. What about an ex spouse who contributed to the success of the deceased?
7. How is the property shared if it is a small estate and the children come from different wives?
8. Property of a newly wedded deceased may pass on to another man if the spouse remarries with all the
estate
9. Spouse not to be driven away from the matrimonial home; what if the deceased was living with the
spouse in their family house?
10. How can inventory be taken?
11. What about customs that require the family to use deceased person’s cloth and other personal effects
during the burial and funeral? Eg. Under Ga custom, the one who buries the deceased is entitled to his
sandals.
12. What is the meaning of ‘family’?
13. Problems with the sharing of household chattels and one house between the spouses & children esp.
where they are from different mothers or husbands
14. PNDCL 111 is silent on jointly-acquired properties.
15. No adequate provision for dependent parents as to one house
16. Where the court is to decide, there is no guidelines
17. Grandchild; what level of dependency?
Developments after the passage of Law 111
The law has since been amended by PNDC Law
264 with the inclusion of section 16a and the
substitution of section 17.
After 30 years, the law has been exposed and the
weaknesses are numerous. This explains why
there is currently a bill before Parliament to
amend it.
New Bill in Parliament. Drafted in 2009 during the
tenure of Betty Mould Iddrisu as the Attorney
General
New scheme proposed under the Bill
Where the intestate is survived by a spouse and a child, the residue of the
estate devolves in the following manner;
• 35% to the surviving spouse,
• 40 % to the surviving child,
• 15 % to the surviving parent, and
• 10% in accordance with customary law.
Where there is no surviving parent, the residue of the estate shall devolve in
the following manner;
• 45 % to the surviving spouse,
• 45 % to the surviving child, and
• 10 % in accordance with customary law.
The New Scheme cont’d
Intestate survived by more than one spouse
Where the intestate is survived by more than one spouse, the residue of
the estate devolves in the following manner;
• 50 % to the surviving spouses,
• 40 % to the surviving child,
• 5 % to the surviving parent, and
• 5 % in accordance with customary law.
Survived by a spouse and child elsewhere
• 50% to the spouse
• 35% to the child
• 10% to parents
• 5% in accordance with customary law
The New Scheme Proposed
Where the intestate is survived by no spouse but a child & parents, the residue of
the estate devolves in the following manner;
• 75 % to the surviving child,
• 20 % to the surviving parent, and
• 5% in accordance with customary law.
Where there is no child but a spouse & parents, the residue of the estate shall
devolve in the following manner;
• 70 % to the surviving spouse,
• 25 % to the surviving parent, and
• 5 % in accordance with customary law.
Where spouses got separated for 3 or more years
• The court is to decide, but it should not be less than 30%
The New Scheme proposed
Where the property was jointly owned by the spouses
• 75% to the spouse (50% benefit and take one half in the other 50%)
Where the intestate is survived by spouse only with no child or parent, the residue of the estate
devolves in the following manner;
• 80 % to the surviving spouses,
• 20 % in accordance with customary law.
• If property is mortgaged, spouse or child can apply to court for the sale of the property or for its
redemption
• Provision for a child before distribution
• If not done, it constitutes a crime punishable by up to 4 years imprisonment or 500 penalty units (GH
₵6,000)
• Court can then make an order for re-imbursement or re-instatement
• Another area to create conflict: How much?
Only parent
90% to the parent
10% in accordance with customary law
New Scheme
• Where one house, the child and spouse jointly
choose first before the sharing.
• In case of disagreement between the spouse and
child, the administrator can go to court for it to
decide
• Where there are more than one house, the spouse
chooses and the children also choose before the
sharing
• Small estate is for only spouse, children or parent
where the two are not alive.
• Amount for small estate is GH₵1,000.00.
Mohammedan Law
Essential Requirements for a valid Moslem or
Mohammedan Marriage as spelt out in the case of
Barake v. Barake [1993-94] 1 GLR 635
1. A proposal made by or on behalf of one of the parties
to the marriage
2. An acceptance of the proposal by or on behalf of the
other
3. Acceptance has to be in the presence of two witnesses
who have to be sane and adult Mohammedans
4. Both the proposal and the acceptance had to be
expressed at the same meeting
Application of Islamic Law in Ghana
Brimah & Cobsold v. Asana [1962] 1 GLR 118
Held: (1): While a Ghanaian can freely opt for any religious faith his choice
cannot operate to deprive him of rights and privileges, or exempt him from his
liabilities and duties under the general law of the land;
(2) in accordance with the provisions of the Marriage of Mohammedans
Ordinance, Cap. 129 (1951 Rev.) ss. 5 and 10, Islamic law will only regulate the
distribution of the estate of a deceased Moslem when the deceased married
according to Islamic law and the said marriage was registered under the
ordinance.
(3) where these conditions are not satisfied, as in this case, the only law which
can regulate succession to the estate of the deceased, who died testate, is the
law which appears from the form or nature of the disposition to have been
intended by the testator to apply in determining the issue, i.e. the common law of
Ghana as to testate succession.
Kwakye v. Tuba [1961] G.L.R. (Pt. II) 720
Holding (3): “In Ghana, succession is not based upon a person's
religion; it is regulated by customary law unless otherwise provided
by statute. As Kwasi Kumah was alleged to have been a Muslim,
Mohammedan law will apply to his estate only if it is proved that his
marriage satisfied the conditions of the Marriage of Mohammedans
Ordinance, Cap. 129 (1951 Rev.), in particular section 10 thereof,
which requires that the marriage must have been registered under
the Ordinance. A marriage by a Mohammedan according to
Mohammedan law is at its very best a marriage by customary law,
and does not affect succession to his estate, unless the said
marriage is registered under the Ordinance. There being no evidence
of the registration of Kwasi Kumah's marriage, Mohammedan law
cannot apply to him”. – Per Ollenu J.
