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INTRODUCTION.
Probate or Letters of Administration is the legal process or procedure of administering the estate of a deceased. It involves identifying and appraising the assets and liabilities of the deceased, paying off any debts, and distributing the remaining assets to beneficiaries. In Ghana, Probate or Letters of Administration is regulated by the Administration of Estate Act 1961 (Act 630), Order 66 of the High Court Civil Procedure Rules 2004 [C. I 47] and Intestate Succession Act 1985, PNDC Law 111. Another important piece of legislation in Probate actions, especially contentious ones, is the Wills Act 1971 ( Act 360 ).
The grant of Probate or Letters of Administration authorises Executors in a Will made by a deceased who died testate, and administrators in the case of intestacy to commence distribution of an estate. The Probate or Letters of Administration process thus ensures that an estate is distributed by the wishes of a testator in the will and, where there is no will, per intestacy laws respectively.
While the administration of an estate could be fairly straightforward, the same could be complex and time-consuming, depending on certain circumstances. Consequently understanding the requirements and procedures of Probate and letters of administration in Ghana is essential for anyone involved.
This article will explore the requirements for obtaining Probate or Letters of Administration in Ghana; the article will also explore the role of the Court, the rights and responsibilities of the parties involved in the probate process, and the steps that must be taken to administer an estate per the applicable law in Ghana.
Distinguishing between Probate and Letters of Administration
Samuel Azu Crabbe, in Law of Wills in Ghana, defined Probate as a certificate granted in the High Court signifying that the Will of the Testator (one who makes a Will before his death) has been duly proved and is registered at the Registry of the Court and that the Executor proving the Will has the authority to administer the estate of the deceased. It is, therefore, of utmost importance for the court to satisfy itself that the document, the basis for the application of Probate by the Executors, is a testamentary instrument[i] made by the person whose estate is under administration. A person can only be entitled to the grant of Probate once a testamentary instrument is adequately executed and attested.
Letters of Administration (“LA”), on the other hand, is an instrument that a Court grants to a person to deal with the estate of a person who died without leaving a valid Will. LA is, therefore the legal authority given by a court to a person for the administration of the estate of a person who died intestate. LA, as already stated is typically granted to Personal Representatives who shall be the representative of the deceased regarding his movable and immovable property and are deemed in law his heirs and assigns within the meaning of all trust and powers (comprising the surviving spouse, children of the deceased and or the customary successor)[ii].
LA may also be granted where a person who died testate but did not appoint an Executor in his Will. Where a deceased died testate but the named Executors either renounced Probate or failed to prove the Will, or died before they could carry out the distribution or administration, court may be called upon by an application to issue an LA but with Will annexed.
Which Court is seized with jurisdiction for the grant of Probate or LA in Ghana?
In Ghana, the court’s jurisdiction to grant Probate or Letters of Administration is usually where the deceased had a fixed place of abode at the time of death[iii]. Accordingly, an application for Probate or Letters of Administration may be made only to the court within the jurisdiction where the deceased had a fixed place of abode at the time of death (Order 66(1), CI.47). The law allows for the application to be made to any High Court, Circuit Court and District Court within the jurisdiction; albeit depending on the estate value of the deceased.
Meanwhile, where a person dies within or outside the country without a fixed place of abode in the country, the court in the area where any property of the deceased may be found shall have jurisdiction for the purpose of granting Probate or L/A in respect of the estate so long as the Rules or any other enactment allows.
In situations where the deceased has property within the jurisdiction of more than one court, the application shall be made to any of the courts in respect of all the properties (Order 66, rule 1(3)). Notice of such an application shall be given to the Registrar of every court with jurisdiction in the areas where the property may be found.
Also relevant is that any caveat[iv] filed in the court shall be brought to the court’s notice before which the application is pending, which may stay the hearing of the application until the court is satisfied that no caveat has been filed in another court. A caveat is essentially a warning by an interested person who seeks to prevent the grant of Probate or LA to an applicant, on the grounds that they are rather entitled to the grant.
So by its very nature, the purpose of filing a caveat in an estate matter is to enable a party who claims an interest in the estate and intends to, or opposes the grant of probate or letters of administration on the ground that he was entitled to the grant rather than the party who applied, to serve a notice to challenge the application. This is statutorily provided for under Order 66 r 11(1) of CI 47 of 2004.
Additionally, the filing of a caveat serves as a notice to the Probate court when it is considering an application for probate or letters of administration. It is a notice to the court, requesting that no grant be made until the caveatrix or caveator was heard. In practice, the filing of a caveat stays the action on issuing probate or letters of administration unless and until the party who filed the caveat has been heard on his challenge to the grant.
Who can apply for Probate?
Where a person dies leaving a Will (testate), the person entitled to the grant of Probate or Letters of Administration with Will annexed shall be determined in the following order:
- The executor(s) name in the Will.
- Any specific legatee (an individual who receives a portion of a testator’s estate), devisee, or any creditor or personal representative of any such person.
- Any legatee or devisee, whether residuary or specific, who claims to be entitled to the happening of any contingency.
- Any residuary legatee or devisee holding in trust for any other person.
- The ultimate residuary legatee or devisee where the Will does not dispose of the residue.
- Any person with no interest under the Will of the deceased but who would have been entitled to a grant under the deceased estate if the deceased had died intestate.[v]
The named Executors usually make an application for Probate. However, where the named Executors are deceased or unwilling to apply for Probate or have renounced executorship or where the Will fails to name Executors, then any person with interest in the deceased’s estate may apply for Letters of Administration with will annexed.
Who can apply for Letters of Administration?
Section 77 of (Act 63)[vi] states that the surviving spouse or spouses, surviving child[vii], surviving parents and the customary successor are entitled to the grant of Letters of Administration. However, Order 66 rule 13 states that an application for LA may be made and granted to not more than four (4) persons in the following order of priority where the deceased died on or after 14th June 1985. The order of grant is as follows:
(a) any surviving spouse
(b) any surviving children
(c) any surviving parents and
(d) the customary successor of the deceased.[viii]
A person granted LA shall administer the estate in accordance with the provisions of the Intestate Succession Act, 1985, PNDCL.111. It must clearly be indicated that being granted a Probate or letters of administration does not necessarily make the Executor or the Administrator the owner or beneficiary of the estate.
The Probate or LA is mainly to enable them to distribute the estate of the deceased to those entitled either under the Will or under statute; although it is still possible for an administrator to be a beneficiary of the estate at the same time.
Written by: Angela Opoku-Bonsu ESQ
Angela is a barrister and solicitor of the Supreme Court of Ghana and a member of the Zoe Akyea & Co. law firm.
Her legal interests include but are not limited to Corporate and Commercial practice, Family Law and practice and Energy and Environmental law.
She is also an LLM Candidate at the University of Ghana.
[i] Testamentary instrument is any document or any paper, written or made only to take effect at the death of the maker and to be revocable during his lifetime.
[ii] Section 2 of the Administration of Estate Act 1961, Act 63.
[iii] Order 66 rule 1 of the High Court (Civil Procedure) Rules, 2004 (C. I 47)
[iv] Caveat is a notice of warning filed by a person interested in the estate of a deceased person and addressed to the Registrar of the court with jurisdiction over the last place of abode of the deceased instructing the Registrar that the court shall take no step in the issuance of a Probate or L/A to any other person unless the caveator is heard. Order 66 rule 11of the High Court (Civil Procedure) Rules, 2004 (C.I 47).
[v] Order 66 rule 12 of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
[vi] Administration of Estate Act 1961, Act 63.
[vii] Wills Act 1971, Act 360. Section 18 defines child” to includes a person adopted under any enactment for the time being in force relating to adoption, any person recognised by the person in question to be his child or to whom he stands in loco parentis, and in the case of a Ghanaian, includes also any person recognised by customary law to be the child of such person.
[viii] In re Asante (Dec’d) Owusu v Asante [1993-1994] GLR 271
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