By: Albert Mireku Agyepong (Law and Development Associate, Taylor Crabbe Barristers and Solicitors)
Benjamin Franklin once wrote “… in this world nothing can be said to be certain, except death and taxes.” While men have found ways to avoid taxes, a solution to death remains elusive. Another shared feature of death and taxes is stringent regulation by the law. The first Franklin guarantee, death, is regulated in the manner in which you can die and what happens after to your property after you die. The law in Ghana provides that certain modes of death are unlawful. These are regulated by criminal statutes. The law also provides for how property acquired in the lifetime of a person should be distributed upon his death. There are two regimes for this.
The first is where the person leaves instructions; this is regulated by the Wills Act, 1970. The second is where the person does not leave instructions and is said to have died intestate; this is regulated by the Intestate Succession Act, 1985 (PNDCL 111) and Customary law. The focus of this paper is on the first scenario, when a person dies testate. A person dies testate when they leave behind a will. A will is defined as an expression of an intention of how one’s self acquired property can be distributed on his death. The use of the term self-acquired property is instructive, it will be explored further in this paper. In Ghana, the making of wills is regulated by the provisions of the Wills Act, 1971 (Act 360).
Making A Will
The Wills Act came into force on the 1st of June of 1971. It replaced the English Wills Act of 1837 which regulated the making of wills prior to Act 360. The Act provides the formalities for making a will. A person who is eighteen years and above can make a will to dispose of property she has acquired within her lifetime or she is entitled to at the time she dies. For a will to be a valid, it must comply with the formalities stated in the Act.
Firstly, the will should be in writing. The requirement for writing is to accurately capture the intentions of the testator. It does not have to be typed. It can be handwritten on any material. An exception to the writing rule is a privileged will. This is a will made by a member of the armed forces; it also has its own conditions also provided for in the Act.
The second formality is that the will must be signed at the end of the document. Generally, the signature marks the end of the will, so any dispositions made after the signature are not valid. The law permits another person to sign at the direction of the testator. This provision is to cater for disabled persons. Also, a thumbprint can be used in place of a signature, but it must also be at the end of the will.
The third formality is that the signature must be attested by at least two witnesses in whose presence the signature was made or acknowledged. The attesting witnesses must be people who have capacity to enter into a contract. Generally, a beneficiary under a will cannot be a witness unless there are more than two other non-beneficiary witnesses or the beneficiary is a creditor.
There is no requirement that a will must be made by a lawyer, registered or stamp duty paid. It suffices that a will meets the formalities enumerated above. In practice, where a will is drafted by a solicitor, a copy of the will is deposited at the High Court Registry. This makes it easier to search for the will when the testator passes.
The other requirement for a will is that the testator must have an intention to make a will (animus testandi). This requires that the testator understands and appreciates the nature of the act they are undertaking, the testator is not suffering from any vitiating mental disorder and the testator is acting free from duress or undue influence. The presumption is that a testator has the intention to make the will. There is no requirement of proof of intention unless the intention is challenged.
A will is a dynamic document. It is capable of several uses. Apart from disposition of property, a will can also be used to appoint a guardian for children, it can also be used to give directions on funeral arrangements and what should happen to the body after death. Statutorily, there are very few restrictions on the use of a will. Examining the provisions of the Wills Act, it appears there are no express restrictions on what a will can be used for. It is valid so far as it an expression of the intention of the maker.
There are however restrictions on the property that can be disposed by a will. A will can only be used to dispose of property that is acquired during the lifetime, at the time of death or after death. This means that family property or property acquired as part of a joint tenancy cannot be disposed by a will. The Act defines property to include movable and immovable property and a right, benefit, an expectancy or any other interest. This definition is broad and permissive presumably to not restrict testamentary disposition. This is further appreciated when consideration is given to the definition of movable property. According to Black’s Law dictionary movable property is defined as property that can be moved or displaced, a tangible or intangible thing that is not attached to land.
The concept of a biological will is attributed to Israeli lawyer Irit Rosenblum. It is a type of will that conveys the testator’s intentions for the use or disposal or gametes or ova. In other words, a biological will is a document that contains the instructions of a testator on how stored sperm or eggs should be used after his or her death. Biological wills are used to ensure that a person’s wishes for a biological legacy are legally binding.
According to Rosenblum, biological wills offer singles and same-sex couples an alternative to anonymous sperm or ova donations by receiving sperm or ova from a known donor. It is beneficial for all stakeholders involved.
It has become prevalent today as it represents an avenue for genetic control. Single parents who wish to have paternal families for their children; Parents who want their children to grow up with a complete family tree and genetic record and families who seek continuity for deceased relatives can all resort to biological wills. A biological will resolves
challenges that conventional parenting arrangements do not answer. Where biological wills are resorted to, grandparents are blessed with a biological grandchild; the single parent gains a paternal family without compromising on a partner; the new born has a complete family and a known genetic record.
Can a Biological Will be Implemented in Ghana?
As noted above, the property that can be disposed of by a biological will is personal property belonging to the testator acquired during his life time or at the time of death. This includes movable and immovable property and a right, benefit, an expectancy or any other interest. Thus, there is a two-tier criterion that biological property must satisfy. The first is that it is self-acquired property and the second is that it must be movable or immovable property or a right, benefit, expectancy or any other interests.
Biological property as self-acquired property
Case law does not provide a uniform definition of what constitutes self-acquired property. From a thorough analysis of the cases, it is evident that the courts have adopted a comparative approach in determining whether property is self-acquired property or not. The courts usually make a distinction between self-acquired property and family/stool property. In matrimonial matters the distinction is between self-acquired property and joint property. Thus, it can be concluded that what constitutes self-acquired property is determined on a case-by-case basis by the courts. However, certain elements run through the factors the courts take into consideration when making this distinction.
In Amissah-Abadoo v Abadoo, Edward Wiredu J affirmed the following statement of principle by Ollenu in his book, Customary Land Law in Ghana, at page p. 42:
“It is submitted, however, that the correct statement of custom is that if a member of the family is granted a portion of the general family land, i.e., a site which has not previously been granted to another individual member of the family, or a site which another individual member has not previously effectively occupied, the house which he builds on such a site, by his independent effort and his own individual means, becomes his self-acquired property, which he may alienate inter vivos or by testamentary disposition. But a building which the individual member of a family is permitted to erect on family land in use by the family, e.g., a site on which family structure of any sort exists, is property in which the individual member who builds has a life interest only; it is to be used and treated in every respect as his individual property, except that he cannot create an interest in it which may subsist after his life.”
Also, in Biney v Biney it was stated per Anin J.A. in a similar vein that:
“In brief, where a family member builds on vacant family land by using his own private resources, unaided by the family, whether with or without prior permission from the family, he acquires only a life interest therein. Upon his death, his building remains family property, and is heritable by members of his immediate family. On the other hand, if such a family member secures a grant from the family of a portion of unoccupied land for his building in the proper customary manner, the house built by him on such a site, by his own effort and means, becomes his self-acquired property which he can alienate inter vivos or by testamentary disposition.”
In the case of Larbi v Cato and Another, the court cited Sarbah at Page 77 of his Fanti Customary Laws, (1st.Edition) where the learned author provided a definition. He posited that
“Property is designated self-acquired or private, where it is acquired by a person by means of his own personal exertions, without any unremunerated help or assistance from any member of his family.”
Assessing the authorities, it appears the definitions given to self-acquired property relate to immovable property. Considering the definition of immovable property, biological property cannot be described as such. Thus, the existing authorities are unhelpful in determining whether biological property is self-acquired property. However, applying the substance of the definitions, that is, the property being acquired by independent effort and individual means, biological property in this author’s humble opinion may be considered self-acquired property. This is because some individual effort is required on the part of the testator to acquire the biological property. The production of semen for storage purposes requires some physical effort on the part of the man, to bring the semen out of the body and put in storage condition. In the case of women, although the production of eggs is involuntary, some independent effort in the form of submitting herself to a procedure to take that biological component out of of her while they are alive. Thus, in so far as a person submits themselves voluntarily to produce ova or gamate and put same in storage for future use, such gamete and ova can be considered to be acquired by the individual effort of the owner. Thus, biological property can be considered self-acquired property and capable of disposal by a will under the Wills Act.
Biological property as family property
There is also an argument to be made that biological property is family property. The position under customary law in Ghana is that the body of the deceased belongs to the family. As such it is the family that determines how to dispose of the body. This customary position was given blessing in the case of Neequaye & Another v Okoewhere Lutterodt J (as she then was) explained that:
“on the authorities, under customary law, death finally determined the authority which a member of a family had over his person and control and authority over the corpse vested absolutely in the wider family who were responsible for giving the deceased a funeral not only befitting the status he attained in life but one compatible to the social standing of the family in the community and members of the family were obliged to contribute to it.”
In the same case the court refused to treat the corpse as self-acquired property for the purposes of intestate inheritance. The learned judge reasoned as follows
“I would not hold that a corpse is part of the self-acquired property of the deceased. One may ask, when did the deceased acquire the corpse? It is only if it were in law part of the deceased intestate’s self-acquired property that it could be inherited under PNDCL 111. Even so, we must draw a sharp distinction between succession to the self-acquired property of a deceased person, even if corpses form part, and who has the right or the responsibility to arrange the burial and funeral rites or obsequies, ie where the person is to be buried, which in reality is the issue at stake.”
Two important points can be gleaned from this holding. The first is that the corpse cannot be inherited because it does not form part of the self-acquired estate of the deceased. Applying this to the current challenge, if biological property was to be considered as being part of the body at the time of death, then it cannot be alienated by testamentary means.
The second point is that even if the corpse were self-acquired property, it was still the family that was responsible under custom to determine how it is disposed of. Applying this holding to our peculiar challenge, the logical conclusion reached is that biological property, if forming part of the body at the time of death, can only be disposed of by the family.
The conclusions reached above on disposal of biological property being the purview of the family hinge on the biological property constituting a part of the body at the time of death.
Thus, the logical question to ask is what constitutes the body at the time of death.
What is the body?
The Coroners Act, 1960 (Act 18) is the primary legislation that governs the appointment of coroners. The Act provides for issuance of burial certificates, examination of deceased body and removal of the body to the mortuary. The Act does not define a dead body. However, the tenor of the language used in the Act suggests that the dead body refers to the torso and limbs. In the case of R v Cotesworth, it was held that spitting was considered physical touch for the purposes of establishing bodily contact in trespass against the person. The saliva spat, was considered an extension of the body. This may provide a basis to argue that gamete and ova taken from the body also represent an extension of the body. Thus, it falls within the meaning of deceased body and is the property of family.
Critically analysing the authorities cited above, there is a cogent case to be made for the proposition that biological property is family property. However, this position is untenable if biological property does not form part of the body at the time of death. In the author’s humble opinion, it is disingenuous to equate the body of a deceased person to the biological components that can only be taken during the life time of the deceased and that survive long after the person is dead. As such, biological property cannot be described as part of the dead body that belongs to the family. This means that biological property cannot be considered as family property.
The proliferation of fertility hospitals and the increasing adherence of Ghanaians to family planning have made freezing eggs and semen for future use popular amongst urban Ghanaians. Lurking behind this new fad is the issue of how stored biological property should be disposed of in the eventuality the owner dies. The current legal framework does not expressly address this issue. However, a broad and liberal interpretation of the Wills Act suggests somewhat of a framework that may potentially permit the disposal of biological property by will. This framework is hollow at best. It also has to contend with the potent claim that biological property is family property. In order resolve any lingering doubts regarding the ownership of biological property and to provide a proper framework for its disposal; this author respectfully submits that there is a need for legislative intervention to allow individuals to dispose of such property through wills.
The intervention can take form in amending the definition of property in the Wills Act to include biological property. This position is favourable for a number of reasons.
Firstly, the legislative intent of the Wills Act, is to allow a person dispose of his property in accordance with his wishes. It is for this reason that there are no fixed formal requirements for a will and the language of the Act is permissive. In Re: Blay Miezer (decd); Ako Adjei & Another v. Kells & Another the Supreme Court quoted with approval the decision of Cock v. Cooke that:
“Any document duly executed in accordance with the requirements of the statute, however irregular in form or inartificial in expression is entitled to probate, provided the person executing it intended that it should not take effect until after his death, and it is dependent upon his death for its vigour and effect.”
Secondly, a will is an intentional document. In Re Amarteifio (Decd); Amarteifio v. Amarteifio it was decided that a will is an intentional document. As such in construing it, effect should be given to the intention of the testator. What this means is that a will represents the best way for a deceased person to express how his property should be distributed. Thus, where the intention is clear the courts should give effect to it.
Thirdly, it would be a bad policy decision to allow the extended family decide what happens to the biological property of a person. The extended family may have other intentions and may be motivated by the possibility of enrichment. This would occur where the deceased left property for the fruit of the biological property. If no child is born from the biological property, the gift falls into residue. If there is no residual beneficiary then the gift will be distributed in accordance with intestate succession law. The external family being one of the primary beneficiaries under interstate succession, may be motivated by the potential gain in dealing with the biological property of a deceased family member.
For the foregoing reasons, as well as the need to update our succession laws to match modern trends, that the question of disposal of biological property must be resolved rapidly and assiduously by Parliament.
* The author is a Law and Development Associate with Taylor Crabbe Barristers and Solicitors. He holds an LLB (First Class Hons) from the Ghana Institute of Management and Public Administration and a Barrister at Law certificate from the Gambia Law School.
 Wilberforce v Wilberforce [1999-2000] 2 GLR 311
 Baksmaty v Baksmaty  GLR 56
 Section 18 of the Wills Act, 1971 (Act 360).
 Black’s Law Dictionary (8th ed) p1040.
  GLR 110-132
  1 GLR 318-336,
  GLR 146
 [1993-94] 1 GLR 538
 (1704) 6 Mod Rep
 [2001-2002] SCGLR 339 at 383
 [1982-83] GLR 1137