Is a Separated Spouse Entitled to a Share in the Estate of a Deceased Spouse?
Article 22(1) of the 1992 Constitution of Ghana requires that reasonable provision should be made for surviving spouses out of the estate[i]of a deceased spouse whether or not the deceased spouse died having made a will. Consequently, the Supreme Court in Akua
This provision gives constitutional backing to section 13 of the Wills Act, 1971 (Act 360) which gives dependants[iv]of a testator the right to apply to the High Court for maintenance if the testator did not make reasonable provision for them and that hardship will be caused if reasonable provision is not made in their favour. In Akua Marfoa v Margaret Agyeiwaa, the court enforced the provisions of Article 22(1) and Act 360 and laid out the factors that a court must take into account in ordering financial provision for dependants.
The facts of the case are as follows: the parties were both married to the late George Asare Ntim who died testate in July 1995. Under the
The High Court granted the application and made the following orders in favour of the appellant: a plot of the testator’s land at Mateheko; one room in the house of the testator at Odwaa for life; and one-third the farmland at Odwaa to the appellant and her children. The respondent appealed against the ruling of the High Court. The Court of Appeal set aside the ruling of the High Court on the grounds that the appellant failed to put before the trial court all the relevant facts “that might indicate the appellant’s needs in terms of bare necessities and other requirements of a decent standard of living” in order to assist the court to exercise its discretion under section 13(2) of Act 360.
The appellant appealed against the judgment of the Court Appeal on grounds that the Court of Appeal erred by requiring the appellant to prove her dependence on the testator in his
In arriving at its decision, the Supreme C
Furthermore, the respondent argued in opposing the appeal that the testator was justified in excluding the appellant from his will because “she was disrespectful to him and never allowed the deceased to have a happy marriage”. The court in dismissing the argument posited that “the highest law of the country, the 1992 Constitution, in article 22(1) requires that a person should be reasonably provided for from the estate of his or her spouse. This provision was not required to take effect only when a marriage was thriving or peaceful; but in all marriages”.
The Supreme Court, therefore, held that “…whatever the situation in a marriage is, a spouse should be reasonably provided for”. Thus, the appellant was entitled to reasonable provision from her deceased husband’s estate. The court however, made modifications to the orders made by the High Court as being excessive, based on the evidence adduced. Thus, the court ordered that the appellant
[i]The amount, degree, nature, and quality of a person’s interest in land or other property. – Black’s Law Dictionary 9thEdition.
[ii]DLSC2776 retrieved from: https://dennislawgh.com/case-preview?id=DLSC4468&searchType=title&srb=
[iii]Separation should be distinguished from Divorce. In the former, the couple must have shown an intention or must have totally and actually withdrawn from the performance of all marital obligations and complete cessation of cohabitation. While the latter is the formal dissolution of a marriage under customary law or by a court.
[iv]A spouse, child under 18, mother and father.
Thanks so much for this piece.very educative
Okay. So the applicant must be a dependant. What if at the time of death of the testator the applicant was totally independent?
What would that reasonable provision mean considering the Supreme Court’s decision in Akua Marfoa v Margaret Agyeiwaa?
Well, I think if her independence is to the extent that no provision made for her under the will would not bring upon her some hardship or suffering, then the court may not enforce her demands. Ultimately it boils down to the evidence available.