Law, Culture and Women's Inheritance Rights in ... - Leitner Center

*322 Notwithstanding this trend among some members of the judiciary, other judges
expressed discomfort with the suggestion that they should begin to take into account such
contribution without legislative guidance. For example, High Court Justice Afari, in Tarkwa,
commented that, in his view, “the Court of Appeal is not yet ready for the argument that women
should be compensated for their contribution.” [FN306] Justice S.A. Brobbey of the Court of
Appeal suggested that the domestic services of a wife as contribution should be codified.
[FN307]
In light of both judicial support of the recognition of women's contribution to property and
judicial reluctance to act without legislative guidance, we recommend that Law 111 be amended
as follows. First, § 1(2) of the statute should be amended to include language explicitly
excluding a spouse's self-acquired property from the intestate's estate. Section 1(2) could be
amended to read: “This Law shall not apply to any stool, skin, or family property, or the selfacquired
property or share of property of the decedent's spouse.” This language affords equal
protection from distribution to family property and the self-acquired property of a spouse.
Second, the definition of estate in § 18 should be amended to read:
“Estate” means self-acquired property which the intestate was legally competent to dispose
of during his lifetime and in respect of which his interest has not been terminated by or on his
death; and excluding any property or share of property acquired through substantial monetary or
nonmonetary contribution of a spouse.
This statutory language clarifies that the term “self-acquired” excludes from distribution not
only family property but spousal property as well and that courts should take into account both
the monetary and nonmonetary contribution of the spouse.
Some may argue that excluding property from the estate based on the widow's contribution
results in double-counting: the widow keeps both her self-acquired share of the property and the
spouse's share under Law 111. Such a change, however, *323 merely equalizes the status of
widows and widowers under the law. Currently, when a woman dies, her husband keeps all of
his self-acquired property accumulated during the marriage and, in addition, receives the spouse's
share of his wife's estate. Widows would be treated equally under the existing gender-neutral
language of the statute but for the implicit presumption that all of the property accumulated
during the marriage belongs to the man (or in some cases the family). The suggested amendment
simply clarifies that a widow's self-acquired property, broadly defined, should be excluded from
the estate at the outset.
C. Problems of Administration
Ghanaian law requires a party seeking to administer an intestate's estate to obtain a grant of
letters of administration. [FN308] The law establishes a hierarchy among persons with a
beneficial interest in the estate who are entitled to a grant of letters of administration. The order
of priority is: (1) spouse; (2) children; (3) parent of intestate; (4) customary successor. [FN309]
Notwithstanding this priority list, in practice, courts often regard the lineage of the deceased as
the party competent to take control of the property of the intestate. [FN310] According to Justice
Owusu, Community Tribunal Chairman in Accra, courts will not grant letters of administration
to a widow without an affidavit from the family supporting the application. [FN311] This
deference to the lineage in the administration of the estate has created a number of problems.
Because the lineage has a very limited share in the estate under Law 111, [FN312] it may attempt
to delay the administration*324 of the estate by refusing to join the widow in applying for the
letters of administration. [FN313] For example, in the case of Mrs. Cecilia Ackah, discussed