EQUITY II - SUCCESSION

COMPILED BY DR. ISAAC ANNAN

Succession - definition

Succession is defined as the acquisition of rights or property by inheritance under the laws
of descent and distribution (Black’s Law Dictionary).

Succession can be intestate (death without a valid will) or testate (death with a valid will).
Under customary law, however, succession can take the form of an oral testamentary
disposition (will) commonly called ‘samansiw’.

Will under customary law - samansiw

Until the introduction of a written Will through the enactment of the Supreme Court
Ordinance of the Gold Coast on 31 March 1876, the dominant form of testamentary
disposition of property or testation in Ghana, was samansiw (oral will). This was so because
the people were illiterates living in small village communities where the written word was
unknown to customary law and therefore their wishes were conveyed by word of mouth or
by physical symbols – see Yakoah v Koom D.C. (Land) 48-51 at p.84 & Nkrumah v Mann
(1971) 1 GLR 176 at 181.

The origin of samansiw as a form of customary disposition of property has been contested
by various legal scholars notably John Mensah Sarbah, Ollennu, Rattray and lately A. K. P.
Kludze. Nonetheless, with the coming into force of the Supreme Court Ordinance of 1876
and the establishment of the Supreme Court of the Gold Coast, the established Courts of the
Gold Coast were mandated to administer the laws by taking into account…….

Legislative Context

‘The Common Law, the doctrine of equity, and the statutes of general application which
were in force in England at the date when the colony obtained a local legislature, that is to
say, on the 24th July, 1874, shall be in force within the jurisdiction of the Court’ (s.14 of the
Ordinance).

Specifically, s.16 of the Supreme Court Ordinance, 1876 provided for Probate, Divorce and
Matrimonial cases in conformity with the law and practice for the time being in force in
England.

On 30 December 1892, the Probates (British and Colonial) Ordinance (Cap 21) was enacted
to give recognition in the Gold Coast to Probate and Letters of Administration granted in the
United Kingdom or in a British Colony or by a British Court in a foreign country (see s. 3(1)).

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The Marriage Ordinance of 1884 (Cap. 127) brought about the challenge in relation to
disposition of property by customary will (samansiw) vis-a-vis s.16 (supra) of the Supreme
Court Ordinance, 1876 – see In re: Anaman (1894) Sar. F.C.L 221 where the deceased made
his will in accordance with customary law (samansiw).

The issues that arose in the above case were: (a) whether the customary Will made by
Anaman was valid; and (b) whether the devolution of the deceased’s estate was regulated
by English law.

The Cape Coast Divisional Court per Francis Smith, J held that a person married under the
Marriage Ordinance, 1884, would be deemed to have died intestate, unless he made a will
under the English Wills Act, 1837.

Instructively, Francis Smith, J said, among others, that:

‘It requires no argument to show that the status of persons who are married under the
Ordinance is entirely different from that of those married according to native law. The
former confers rights, which not only are not enjoyed by those married according to native
law, but are inconsistent with the provisions of the native law. Disabilities are created which
are not to native law. But it is contended that it is only in case of intestacy that these rights
can be enforced: that is where a person died without making a will either according to
English or native law.’

See also In re: Otoo (1927) D.C. 26, 29, 84 affirming In re: Anaman.

As a response to the challenges posed per the precedents regarding In re: Anaman (supra)
and In re: Otoo (supra), in Coleman v Shang (1959) GLR 390, the Court of Appeal stated,
among others, that:

‘We are of the opinion that a person subject to customary law who married under the
Marriage Ordinance, does not cease to be a native subject to customary law by reason only
of his contracting that marriage. The customary law will be applied to in all matters, save
and except those specifically excluded by the statute ... We think it would be unreasonable,
and repugnant to natural justice, to hold otherwise....’

The case of Coleman v Shang (supra) established that in Ghana two systems of law regulate
the making of wills namely (a) the customary law; and (b) statute law.

Definition of Samansiw

Under customary law, a will is variously called ‘samansiw’ (Akan) or ‘shamansho’ (Ga) or
samansie (Asante).

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This form of will is made ‘orally’ (nuncupative) and like a will under the common law, it can
be revoked at any time during the lifetime of the donor (i.e. ambulatory).

John Mensah Sarbah (‘Fanti Customary Law’) explains samansiw as follows:

‘Death-bed disposition, known as samansiw, seems to be recognised, not because of any

assumed right to make such a disposition, as because, from feelings of affection, respect, or
even superstition, the last wishes of the deceased are considered to be entitled to weight,
among members of his family. And this runs through the Customary Law relating to
testamentary disposition of property’.

Also, Rattray, in his book, ‘Ashanti’ (1923) described samansiw as:

‘... a recognised method by which a man, with the full consent as usual of his family, could
leave by verbal gift or will, taking effect during his lifetime or after his death, a portion of his
land to his son ... The samansiw was only legal when the members of the family agreed to
the transfer of the title, for without this consent, and the presence of witnesses, such
alienation would not have been binding’.

Furthermore, the concept of samansiw was explained in Abudu Atuahene v Kwabena

Amofa, Court of Appeal, 4 August 1969, unreported, digested in (1969) C.C. 154, by Akuffo-
Addo, C.J. thus:

‘Samansiw, as the name implies (it is an Akan expression which literally means ‘a ghost
behest’) is a disposition of property which takes effect after death, and it is the Customary
Law mode of testamentary disposition ... In its origin it is akin to donatio mortis causa in
English Law. Like all customary transactions, samansiw is a verbal disposition and required
publication for the purpose of perpetuating the testimony thereof’.

The legal validity of samansiw is provided for in s. 19 (3) of the Wills Act, 1971 (Act 360)
which states that:

‘This Act shall not affect the validity of oral testamentary disposition made in accordance
with customary law’

Donatio Mortis Causa

Donatio mortis causa is a gift given in contemplation of death. In re: Beaumont v Ewbank
(1902) 1 Ch. 892, donatio mortis causa is explained:

‘A singular form of gift. It may be said to be of an amphibious nature, being a gift, which is
neither entirely inter vivos nor testamentary. It is an act, inter vivos by which the donee is to
have absolute title to the subject of the gift, not at once but if the donor dies. If the donor

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dies the title becomes absolute; not under but as against his executors. In order to make this
gift valid it must be made so as to take effect on the donor’s death. The Court must find that
the donor intended it to be absolute if he died, but he need not actually say so’.

Donatio mortis causa is a gift in praesenti, which takes effect in futuro - see Jones v Selby
1710 Prec. Ch 300 at 303.

Samansiw is not the same as donatio mortis causa in that the former (samansiw) need not
be made in contemplation of death - see Abenyewa v Marfo (1972) 2 GLR 153. However,
like a will, samansiw is contingent upon the death of the testator or donor and it is
ambulatory making it revocable at any time before the death of the donor.

Samansiw can be made while in good health – see Saarah v Asuah (1962) 1 GLR 535.

Under s. 6(1) (c) of the Wills Act (Act 360) concerning members of the Armed Forces who
can make an oral will while in active service.

Requirements of Donatio Mortis Causa

 It must be made in hopeless contemplation of death.

 It becomes absolute or must take effect, only on the actual occurrence of death from
the donor’s existing illness or contemplated danger, even though it is sufficient if he
dies from some other disease - Wilkes v Allington (1931) 2 Ch 104

 Unlike samansiw, there must be delivery of the subject matter of the gift by the
donor or by direction to the donee or his agent; and the recovery of the donor from
that illness, or his subsequent revocation of the gift, such as resuming possession of
the gift, certainly nullifies it - Asante v University of Ghana (1972) 2 GLR 94-95.

Samansiw and consent of family

Rattray has pointed out that under customary law, a person cannot dispose of his self-
acquired property in his will without the consent of his family. This view appears to have
been supported by Sarbah who said that, ‘in the matter of testamentary dispositions the
members of the family exercise much influence’. Other scholars like J. B. Danquah (‘Akan
Law and Custom’, p.198) also stressed that:

‘Testamentary disposition (unwritten) is in fact known, but the will of a deceased member is
subject to the approval of the senior surviving members’.

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Remarkably regarding the issue of consent of family in relation to samansiw, in Abenyewa v
Marfo (supra) at p.168, Taylor, J. affirmed the views of Rattray, Sarbah and Danquah and
stated that the consent or approval of the members of the family is the paramount
requirement. He further remarked:

‘It would seem therefore that in the case of samansiw the most essential requirement for the
validity of the gift is not so much the payment of aseda as the consent of the family’.

Simply put, until the promulgation of the Intestate Succession Act in 1985 (PNDC Law 111),
property of a person who died intestate, automatically became family property hence the
need for a family member to be present or witness regarding the deathbed disposition or
declaration (samansiw).

Requirements of a Valid Samansiw – Initial Attempt by Ollennu

In Summey v Yohuno (1960) GLR 68 at p.71, Ollennu, J., made the first bold attempt at
formulating the essential requirements for a valid customary will (samansiw) as follows:

1. The disposition must be made in the presence of witnesses who must hear what the
declaration is and must know its contents;

2. The members of the family who would have succeeded the person making the will,
had the latter died intestate, must be among the witnesses in whose presence the
declaration is made; and

3. There must be acceptance, by or on behalf of the beneficiaries, indicated by the

giving and receiving of ‘drink’.

See also Akele v Cofie (1961) GLR 334 at p.337 regarding the essential requirements of a
valid samansiw.

The Modern Trend

Contrasting the ratio in Abenyewa v Marfo vis-a-vis the justification and practicability of the
need for consent by members of the family in customary testamentary disposition was
questioned by Akuffo-Addo, C.J. in Quarshie v Baidoo (1969) C.C. 153 where he said:

‘The requirement that, the family must necessarily witness the transaction, has ceased to
have meaning in present day Ghanaian society in cases where the property is self-acquired
property, and has therefore ceased to have any judicial significance’.

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Moreover, the departure from the anachronistic nature of the requirement of consent was
affirmed by Edward Wiredu, J., in Abadoo v Awotwi (1973) 1 GLR 393 as well as Francois, J.
A., in In re: Ohene (Decd.), Adiyia v Kyere (1975) 2 GLR 89 at p.94.

Publication of Samansiw

The importance of publicity in relation to samansiw was given judicial recognition by Apaloo,
C. J., in Anaman v Eyedua (1978) 1 GLR where he said:

‘The object of the customary requirement of publicity is to prevent allegations of secret

alienations – claims which would invariably be made when the donor was no more .... In this
case, the evidence is that he alienated it to his wife and made this gift public’.

The importance of publicity regarding samansiw was also stressed in Yoguo v Agyekum
(1966) GLR 482 at p.493.

Requirements of a Valid Samansiw (Current Position)

Upon reviewing the formulation in Summey v Yohuno in tandem with relevant

jurisprudence – e.g. Mahama Hausa & Ors v Baako Hausa & Anor (1972) 2 GLR 469; In re:
Armah (Decd.) (1975) GLR 89; In re: Ohene (Decd.) (supra); Abenyewa v Marfo (supra) etc.
Azu Crabbe, J in his book, ‘Law of Wills in Ghana’, pp. 37-38, formulated the essential
requirements of a valid samnsiw as follows:

1. That the oral declaration by which the deceased-donor disposed of his property was
voluntary;

2. That the property disposed of was the self-acquired property of the deceased-donor
alone;

3. That the oral declaration was made in contemplation of imminent death or that the
gift was to take effect only on the death of the deceased-donor at any time, though
it need not necessarily be made in the sickbed;

4. That the deceased-donor had reached the age of maturity and was not suffering
from mental or physical disability, or that he was induced by fraud or by any factor
amounting to undue influence; and

5. That the oral declaration was made in the presence of at least two responsible and
disinterested witnesses, and though an omission to include a heritable member of
the deceased-donor family in the number of witnesses does not vitiate the gift, yet
‘it may be necessary ex abundantia cautela to have some members of the family
present’.

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