Property Settlement on

Beneficiaries After Death: The

Law On Probate and
Administration
May 3, 2023 , 4:10 pm
By: Angela Opoku-Bonsu ESQ,Pupil, Zoe, Akyea & Co.

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 Natural
Resources law. She is also an LLM Candidate at the
University of Ghana.

Edited by: Christine Opoku Onyinah & Emmanuel Kwaku Owusu-Asare

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 legislation in
Probate actions, especially in contentious ones, is the Wills
Act, 1971 ( Act 360 ).

The grant of Probate or Letters of Administration authorizes

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 in accordance with the wishes of a testator in
the will and, where there is no will, in accordance with
intestacy laws respectively.

While the administration of an estate could be fairly

straightforward, 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 of the deceased ( comprising the
surviving spouse, children of the deceased and or the
customary successor).

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 ceased 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. 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 LA 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[ii] 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:

1. The executor(s) name in the Will.

2. 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.
3. Any legatee or devisee, whether residuary or specific,
who claims to be entitled to the happening of any
contingency.
4. Any residuary legatee or devisee holding in trust for any
other person.
5. The ultimate residuary legatee or devisee where the Will
does not dispose of the residue.
6. 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.[iii]
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)[iv] makes the surviving spouse or

spouses, surviving child[v], surviving parents and the
customary successor 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 14 th 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.[vi]

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.
When can one apply for Probate or Letters of
Administration in Ghana?

An application for Letters of Administration or Probate may

be made at any time after a person’s demise. An application
shall be made to the court which has jurisdiction over the
deceased’s last place of abode. And as stated above,
depending on the value of the deceased’s property, an
application may be made to either the High Court, Circuit
Court or District or Magistrate Court.

Some important Steps in applying for Probate or

Letters of Administration in Ghana?

An application for Probate or LA is made by a Motion Ex

parte with a supporting affidavit.
The supporting affidavit shall depose to the
identification/particulars of the deceased, the date of
death, proof of death, the fixed place of abode of the
deceased, whether or not the deceased was survived by
a spouse or children, the names and ages of the children
survived by the deceased and the estate’s value.
The affidavit shall also state the applicant’s interest in the
estate and his relationship with the deceased.
Also, the Executors of a Will must provide the Testator’s
last Will and fill out a set of statutory forms, i.e. the Oath
 of Executors and Affidavit of Witness, which the
Applicant should complete and sign.
In addition to the affidavits by the applicants, a declaration
of movable and immovable properties of the deceased
together with their values shall be filed by the applicants.
[vii]
A death or burial certificate or any evidence proving the
deceased’s death shall be exhibited to the affidavit in
support.

A person who fails to follow the legal process outlined in

applying for Probate or LA and deals with the deceased’s
property will be said to have intermeddled with the
deceased’s property.

What is Intermeddling?

This is where a person takes possession of and distributes

the estate of a deceased without the grant of Probate or LA.
Intermeddling is therefore the unauthorized and improper
involvement in the management of a deceased’s estate by a
person not appointed as Executor or Personal
Representative. This can include taking possession of
assets, distributing property, or making decisions for an
estate, including selling part of an estate or taking money
from the bank accounts of a deceased. Experience has
shown that some persons only go to court to apply for LA
when they need to access money in the bank accounts of a
deceased or they need to access pension funds of the
deceased.

It must be stressed that, without a prior grant of Probate or

LA, any dealing with the estate of a deceased including
putting on their dresses or using their mobile phone,
constitutes intermeddling.

A person said to have intermeddled with an estate is guilty

of an offence and liable to a sentence upon conviction. It is
important to note that a named Executor who fails to apply
for Probate or LA within the period prescribed by law shall
be guilty of the offence of intermeddling in addition to any
other liability that person may incur. It is equally instructive
to add that, until recently, intermeddling was seen as a
quasi-criminal offence that could be commenced by an
application in the civil courts. However, a recent decision by
the Supreme Court has overturned that rule. The Supreme
Court has now held that intermeddling is a substantive
criminal offence which can only be initiated and prosecuted
by the Attorney-General or any lawful agent.

What are the everyday challenges of the Probate or

LA process in Ghana?

Probate or LA process may give rise to some challenges for

a variety of reasons.
 1. Contesting the validity of a Will: when a beneficiary or
family member argues that the Testator was not of sound
mind or that they were unduly influenced.
2. Disputes over the distribution of assets: when
beneficiaries or family members are not agreeable and
need clarification on how the estate should be
distributed. This can happen if there are ambiguities or
inconsistencies in the Will or disagreements over the
Testator’s intentions, which may result in a legal dispute.
3. Executors or Personal Representative disputes: Disputes
may arise when multiple Executors or Personal
Representatives attend to the process of estate
administration.
4. Delays in the Probate or LA process: The probate or LA
process can be lengthy and complex. This is the case
where a caveat is filed by a person claiming an interest
in an estate or where there is a dispute as to person/s
entitled to a grant of LA and delays can be frustrating for
beneficiaries and family members.
5. Liabilities of an Estate: If the deceased had outstanding
debts, creditors might assert a claim to the estate. This
can complicate the distribution of the estate and lead to
disputes between beneficiaries and creditors.
It is worth noting that consulting a lawyer helps to smoothly
navigate the probate process thus minimizing the likelihood
of disputes.
Options for resolving disputes in the Probate or LA
Process in Ghana

There are several options for resolving disputes related to

Probate or LA process. They include:

1. Mediation: Mediation is a non-binding process where a

neutral third party assists the parties in reaching a
mutually agreeable resolution. Mediation can be less
formal and less costly than litigation and help preserve
relationships.
2. Arbitration: Arbitration is a binding process where a
neutral third party decides on the dispute. Arbitration is
less formal than litigation but more costly. However, an
award under arbitration is final and binding on all the
parties.
3. Litigation: Litigation involves the resolution of the
dispute by a judge. Litigation could be time-consuming
but may be necessary where parties fail to amicably
resolve their differences. Note that, the best option for
resolving a Probate or LA dispute will depend on the
case’s specific circumstances. Seeking legal advice from
a qualified attorney specializing in Probate and Estate
Administration can help identify the best option for
resolving disputes promptly and cost-effectively.

Conclusion.
The grant of Probate or LA is a crucial aspect of Estate
administration. It is thus essential to have a well-drafted Will
that accurately reflects the Testator’s wishes.

Understanding the legal principles and requirements related

to Probate or LA in Ghana is thus the key to ensuring sound
administration of the estate. It is equally instructive to state
that in an application for the grant of Probate or LA, the sole
or main issue for determination is who is entitled to the
grant. Where one or an interested person wishes to raise
issues about the validity of a Will or about a competing
interest in the estate, then the proper procedure is to issue
a writ in a fresh action for those matters to be determined
outside the Probate or LA applications.

FOOTNOTES

[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] 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).

[iii] Order 66 rule 12 of the High Court (Civil Procedure)

Rules, 2004 (C.I 47)

[iv] Administration of Estate Act 1961, Act 63.

[v] 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.

[vi] In re Asante (Dec’d) Owusu v Asante [1993-1994] GLR

271

[vii] Order 66 rule 9 (3) of High Court (Civil Procedure) Rules,

2004 (C.I 47)