Origin of Statutory Wills in Ghana

Genesis of the Law of Wills

• The making of statutory wills in Ghana has a relatively recent origin, dating back to the framework of the Wills Act 1837 and the Supreme Court Ordinance of 1876.
• The concept of a testator's volition determining the devolution of property upon death was present in Ghana as early as the 1850s, as seen in Brodie Cruickshank's 1853 writings.
• The roots of Ghana's law of wills are firmly embedded in English concepts and antecedents.

Historical Development of English Law of Wills

• The English law of wills started developing after the Norman Conquest with the creation of ecclesiastical courts as separate entities from common law courts.
• Prior to the Norman Conquest, natives made primitive 'Anglo-Saxon wills' that were not ambulatory, meaning they came into force immediately and were irrevocable.
• The ecclesiastical courts developed rapidly and assumed control over the devolution of personal property of deceased persons.
• The administration of the deceased's personal estate was initially carried out by the church, but authority gradually passed to the family of the deceased.
• Supervision over the administration of the estate by the family passed from the church to the lay courts.
• Jurisdiction over real property continued to be vested in common law courts, which initially insisted that interests in land could not be devised due to feudal ideas of property.

Ecclesiastical Courts and Property Disposal

• The ecclesiastical courts remained in a state of confusion, with different rules and principles regarding property disposal emerging in different parts of England.
• Some ecclesiastical courts allowed the testator to bequeath one-third of personalty to the surviving spouse, another third to surviving issues, and the final third (the 'dead's part') to be disposed of through unfettered testamentary freedom, often to the church.
• Wills expressing charitable bequests were encouraged by the ecclesiastical courts.
• The 1540 Statute of Wills introduced the ecclesiastical courts' concept of wills into the common law courts, but did not relax the common law courts' grip over real property disposal.

Modern Will Requirements

• The 1677 Statute of Frauds created the format of the modern will, making it applicable to the disposition of both realty and personalty.
• The essential modern requirements that a will must be in writing, signed, and attested by the testator were introduced by the Statute of Frauds.
• The Statute of Wills in 1540 introduced a requirement of writing, but this was only applicable to wills of land.

Explore the historical background of statutory wills in Ghana, tracing back to the enactment of the Wills Act 1837 and the Supreme Court Ordinance of 1876. Discover insights from the 1853 writings of Brodie Cruickshank on testators' volition and early oral wills in the Gold Coast.