THE LAW ON DEATH INTESTATE IN RELATION TO FAMILY PROPERTY

Many Ghanaians live in properties which they falsely believe is theirs, but upon their death, they leave their spouses with troubles and litigation. This short write up will examine a fictional fact situation and use it to explain what the law says about Death Intestate in relation to Family Property.

 

THE PROBLEM 

KWADWO MINTAH died intestate in June 2019. He had built a two-room apartment in which he lived with his beautiful wife Yaa Achaa and their 3-year-old daughter, Akosua Ahuofe. The Land was a family land which other family members had also build similar apartments and living on.

In fact, Yaa Achaa had helped his husband in building by contributing financially to help him put up the structure. They wanted to stop paying rent and so they decided to build to have their own peace of mind.

Two years after his death, the family of Kwadwo Mintah are asking Yaa Achaa and her daughter to vacate the building because they need it for a family member who is returning from Nigeria.

Yaa Achaa is very troubled. She has nowhere to go and she wants to hold on to the house she built with her husband.

She is blaming her late husband for not making a Will before his death.

1. Does she have the right to live there?

2. Does the family have a right to evict her?

3. What could she and her husband have done right to avoid this situation?

THE ANSWERS

This Latin term will set the tone for our answers to this problem: “cuius est solum, eius est usque ad coelum et ad inferos”. It means “whoever owns land, it is theirs up to the heavens and down to hell” or “He who owns the soil owns up to the sky”

 

This is the Answer to that Problem: 

In Order to answer our questions on the rights of Yaa Achaa and her Daughter, we need to consult some legal principles. They are the following:

1.     He who owns the soil owns up to the Sky and down to hell. As old as this principle may sound, it helps in settling to some extent, the question of who owns a building. In our problem, we are told that the Land belongs to the family. Since the Land in question is a land belonging to the family, the building also belongs to the family per this principle.

2.     The Ghanaian legal position on family land is that, any member of a family can take possession of a family land and use it as he pleases. It could be farming or residential. Once a family member takes over any part of a family land, that person acquires a life title in that family land. This life title however expires on the day that family member dies. So Kwadwo Minta had a title in the land when he was alive. But that title died with him and he could not have transferred any title to his wife and children.

3.     If the family is a Patrilineal Family, then the daughter could have a say and stay in the room as a family member. That is because, the rooms have become family property and she is a member of the family by virtue of the fact of patrilineal lineage. If however the family is a matrilineal family, then the daughter has not say.

4.     Finally, Section 2 of the Intestate Succession law, PNDC Law 111 has also stated, that the estate of a person does not include properties belonging to

a.       Family

b.       Stool or

c.       Skin.

5.     A will could also not have helped Yaa Achaa. The fact is the land did not belong to her late husband. The principle of law is that, if you build on family land, you are building for the family. Therefore, any clause in a will that purports to give this family property to a wife and child would be deemed invalid or void.

6.     Because the Land is not for Kwadwo, even if he made a Will, the Will could not have vested the property in her wife and child.

 

WHAT COULD THEY HAVE DONE TO AVOID THIS PROBLEM?

a.       Kwadow Mintah could have asked the Family to formally give the land to him as a gift whiles he was alive. In this case, he would have been required to say thank you in a traditional way and that would have made the land his own. If the land belonged to him, then no one could sack his wife and children even if he is dead.

b.       They could have also bought the land from the family.

c.       They could have bought their own land and build instead of building on a family land.

If you have been educated by this post, you can share it so we can avoid these sad situations in our communities.

 

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Thanks for reading.