What is a Will?

A Will is a declaration in a prescribed manner of the intention of the person making it with regard to matters which he wished to take effect on or after his death. A Will can either be a Simple Will or a [1] Complex Will. These will be discussed in the body of this Article.

In simple terms, a Will is a document containing the intention, wishes, [2] or desires of a will-maker (or testator) on how his personal possessions and other affairs concerning him should be managed when he dies. These possessions and other affairs are referred to as his estate. An estate does not die with the will-maker; it survives him. Therefore, it is important that it continues to be managed and protected just as the will-maker would have wanted it.

WHAT IS THE LEGAL BASIS FOR MAKING OF A WILL?

Will making in Ghana is governed by the Wills Act, 1971 (ACT360).

WHO CAN MAKE A WILL?

Section 1 of Act 360 specifies that a Will can be made by any person of or above the age of 18 years and of sound mind.

WHO ARE THE PARTIES TO A WILL?

• Testator- The person who made the Will and devised his self-acquired properties to the beneficiaries.
• Beneficiary- A person who has been devised a property either movable or immovable under a Will. Basically, the recipient of a devised property.
• Executor- A person appointed by the testator to administer his Will.
• Witnesses- A person who attests to (or witnesses) the Will of the testator.

WHAT ARE THE FORMALITIES FOR MAKING A WILL?

• A Will is valid once it is in writing and signed by the testator or another person at his direction.
• The signature of the testator must be acknowledged by him in the presence of two or more witnesses present at the same time.
• If the Will is signed by another person, it shall be made at the direction of the testator in the presence of two or more witnesses present at the same time.
• The witnesses shall attest and sign the Will in the presence of the testator.
• An executor can be a witness to a Will, but a beneficiary in a Will cannot witness the Will.

HOW TO MAKE A WILL?

There are a number of things you should consider before you begin the process of making a Will. Below is a summary of five (5) steps one should take into consideration in order to make an effective Will. They include:

• Who you would like to appoint as the executor(s) and/or trustees of your estate.
• A list of all your assets and liabilities, including assets and liabilities owned jointly with other(s).
• Decide on who will be the beneficiaries of those assets and liabilities.
• Decide on the two (2) witnesses who would attest to the Will.
• After the Will is completed, it has to be stored in the Registry of the High Court so you would have to consider the cost involved.

It is also important to remember to update your Will if your circumstances change (for example, after a divorce or acquisition of new property).

Whether a testator’s Will is a Simple or Complex Will may depend on the following;

• The size of the testator’s estate
• Whether the testator expects to owe estate taxes at the time of their death
• The testator’s desires on how they would like to leave the property to their beneficiaries.

For many people, a Simple Will is sufficient. However, if one has several assets or if the person fears that his Will may be contested at the time of his or her death, then there is the need to create a Complex Will and in addition,[3]  establish a trust. In simple terms, a trust is a fiduciary relationship in which one person (settlor) holds title to property, subject to an obligation to keep or use the property for the benefit of another.

In a Simple Will, the testator’s instructions are clear and straightforward as to who gets what and when and it is unlikely to be contested. It may be the case that you have minimal assets, or only a small family, whom you may want to gift everything.

A Simple Will is often used by people who want to give their estate to their spouse and children. With a Simple Will, it will be less likely that the estate will be contested, and it is less likely that there will be multiple people with competing interests who may feel they are entitled to a portion of the estate and therefore bring about a family provision claim.

WHAT THEN MAKES A WILL COMPLEX?

There are many circumstances in which a Will can become Complex. They can include, but are not limited to, the following circumstances:

• Complex financial and family affairs being administered in a manner that benefits beneficiaries upon their passing with the least amount of tax burden, for example, capital gains tax;
• Different asset classes, or assets being held in different countries and including under separate Wills in those countries;
• Where you intend to obtain more complex assets in the future;
• Complex business or a business that may continue to operate after a person’s death;
• An intention to create a charitable trust;
• an intention to establish a special disability trust or a testamentary trust for minor children or other vulnerable beneficiaries;
• A wish to create complex conditional bequests; or
• A wish to make less traditional choices, such as provision for a former de facto or marital spouse and/or not make provision for close family members, such as a [4] current spouse or children or
• Concerns about beneficiaries you would like to leave out of a Will.

The above therefore, gives the indication that if the testator is faced with any of the circumstances mentioned, it will be imperative for them to create a Complex Will.  Although, in a Complex Will there will be the general elements of a Will i.e., named beneficiaries, executors, witnesses,[5]  etc, the Complex Will should have clauses giving expression to any of the circumstances listed above for which a Complex Will may be created.

For instance, if the Testator has a business that would continue to operate after their demise, such a Will should include clauses that state how the business will be operated upon his passing. Also, a Complex Will may include a trust fund and if that is the case, the Will must state; how the trust fund Will be funded (that is the source of funding), the purpose of the fund,[6]  and also how the fund should be realized.

If you are unsure of what type of Will you would need to properly deal with your estate, consider consulting a lawyer.