Succession Notes: April 9 2022
The Doctrine of Acceleration
A beneficiary of a life interest created by a Will can surrender that interest at any time, Often
occurring where a Will creates a number of successive interests and the life tenant motivated by
the desire to allow the beneficiaries next in line to enjoy the income or capital of the estate,
decides to disclaim or yurrender their own interest under the Will
When this happens the interest of the person who had the property for life has failed or ended
earlier made it possible to to accelerate the interests of the remainder beneficiaries inline who
then take their interest at that earlier time rather than on the death of the tenant for life.
It can also occurs where a beneficiary loses his interest and the next beneficiary takes immediate
benefit because the life tenant either is no most or has lost his right to benefit
This could be due the beneficiary attesting the will as a witness, and therefore having his gift fail.
It may also occur where a life tenant disclaims the property. In that case, his interest will
determine prematurely and the beneficiary's interest becomes immediate.
Doctrine of Incorporation (s. 4)
Sometimes people enter into certain written contracts, or transactions, or arrangements with
other people, which confer on them, profits, benefits, interests, dividends or gains.
These benefits are sometimes desired by them to be shared in some proportions to certain
persons in the future in the event of their demise,
Such documents spelling out the benefits becomes very important to the estate of a testator
when he is drafting his will, as long as the documents are in existence at the times drafting the
will
A will can incorporate such a document by referring to that document in the provisions of the will
The is called doctrine of incorporation. It allows a document entirely separate, distinct and apart
from a Will to be considered and read as part of a duly executed Will.
The advantage of this is that the referred document does not have to comply with the formal
requirements of a will
Section of the Wills Act addresses incorporation in the following words
A will may not incorporate another document unless that document was in existence at the time
the will was grecated is sufficiently identified in the will 2 Oral evidence may be admisible for the
purpose of identification
The doctrine of incorporation is applicable only where there is a polid Will into which the
document may be incorporated.
-Allen Maddock (1888) 14 ER 757
This case considered the issue of incorporation of a document by reference and whether or not
an invalid will could be made good by a codicil which refers to a will being the will which has not
been validly executed and also whether or not extrinsic evidence in admissible in such a situation
Reken(1937) Ch. 236
In The Goods Of Lady Trane(1566) LR1 P & D 201. Ulty of North Wales Taylor(1906) P. 140.
RB Will Trus(1970) 1A ER $17. In Goods of Smart(1902) P. 238
In the Goods of Heathcote (1881) 6 PD 30
Conditions for incorporation:
The document must be in existence at the time the will was made.
It was a provision in the old law, which has been adopted as part of our current law
A documents form part of a will unless it was in existence at the time the will was executed-Order
86 r. 21 (2) of C.L. 47)
Apart from the document being in existence at the time of making the will, the will must
specifically mention the said document as being in existence at the date of the execution of the
will
The document must sufficiently be identifiable as that referred to in the will.
Oral evidence is admissible (s. 4 (2) to identify the document mentioned in the will where it is
challenged that the document was not in existence at the time the will was executed But the
document need not be in writing.
A video or audio tape can be incorporated in a will;
Tracy v. Edwards (2000).
Codicils
A codicil is a supplement to a will. A document that is executed by a person who had previously
made his or her will, and it is read with the Will as both documents constitute one Will
The codicil has the same legal requirements as the will including compliance with the Wills Act
formalities and that the testator has testamentary capacity for execution and witnesses to attest
Relevance
Codicils may add, subtract, modify, delete, quality, or revoke provisions contained in a will
without requiring that the will be reexecuted.
Because a codicil may modify the will in some way, a codicil incorporates the will by referencing
the will in it.
Effects of a codicil
A codicil effectuates a change in an existing will by identifying the will that is to be amended by
the date it was executed
The codicil should state that the will is affirmed except for the changes contained in the codicil.
The same formalities that are necessary for the valid execution of a will must be observed when a
codicil is executed. Failure to do so renders the codicil void.
Unless there is an express clause to the contrary, a codicil re-executes and republishes the entire
will so that the effective date for the will's execution is when the codicil was executed; hence, the
will is said to be republished by codicil
Cookson v Hancock (1836) 2 My & Cr 606; 40 ER 770
Allen v Maddock (1858) 14 ER 757
Several testamentary documents
Where a testator executes several testamentary instruments with codicils varying or revoking
provisions of an earlier will, the will comprises the aggregate of the testamentary intentions
expressed in the unrevoked documents.
Douglas-Menzies v Umphelby [1908] AC 224
Alterations in wills (s.5)
Sometimes it becomes possible for a testator to make insertions, cancellations, crossings etc into
an already written will This may be to correct a typo, or add further information, or cover a word,
or simply deepen a faint print etc. Such enterprises are discussed and termed as "alteration
• Ordinarily changes, variations and amendments to a will should be effected through a codicil,
and executed same way as a will
•Two types of alteration
1. Obliterations: to obliterate is to blot out or render undecipherable.
This arises where words are scratched out, scribbled or pasted over with a strip of paper in a
manner which renders indecipherable,
2. Interlineations to interline is to insert a word or write in between lines.
The law on alterations
The law on alterations is wills are primarily captured under sections 5 of the Wills Act and Order
66 rule 20 respectively as follows
Section 5, Alterations of Will (1) An alteration made in a will does not have effect
(a) unless it is separately executed in the manner that is required for the execution of the will, or
(b) unless it has been made valid by the re-execution of the will or by the subsequent execution
of a codicil to the will
(2) Despite section 2 (2), a separate execution of an alteration is sufficient if it is apparent on the
face of the will that the testator intended to give effect by the execution to the alteration.
Order 66 Rule 20-Interlineations, Alterations, Erasures, Obliterations
(1)The Court on being satisfied that the will was duly executed, shall carefully inspect it to see
whether there are any interlineations, alterations, ensures, or obliterations that appear in it and
require to be accounted for
(2) Interlineations, alterations, erasures and obliterations are invalid unless they have been
executed and attested in the mode required by the Wills Act, 1971 (Act 360) or unless they have
been made valid by the re-execution of the will, or by the subsequent execution of a codicil to
the will.
Advise !!!
Avoid alterations
Go for codicils or revoke the will and make a new one if you can.
Timing of alteration
A testator may want to alter the will before or after its execution.
If alterations made before execution, the will will take effect as altered and there would be no
serious problem.
If alterations are made before execution, it is, although the Act does not require it, prudent to
affix the signatures to them or to refer to them in the attestation clause, if any.
When a will is altered after execution, the testator and witnesses must place their names or
initials opposite or near to such alteration in the margin or elsewhere, or a memorandum
referring to the alterations must be written at the end or some other part of the will, and the
testator and witnesses must place their names "at the foot or end of" or "opposite to" the
memorandum.
In the Goods of Blewitt (1880), 5 P. D.,116
Alterations in pencil are presumed be deliberative and invalid, barring evidence to the contrary
See in Re Bellamy's Goods (1866).
The party alleging the alteration will have to prove that the alteration was made before the
execution.
The party may rely on the will itself or extrinsic evidence
Presumptions regarding Alterations
1. That unattested alterations, interlineations and erasure took place after the execution of the
will, making it ineffective.
2. That a subsequent codicil operates to republish the will. See section 5 (1)
3. That where a will is written partly in ink and partly in pencil, the part in pencil is not deemed to
be final, but just a draft.
4. Alteration made to a privileged will is deemed to have been made at a time the testator had
the benefit of making a privileged will.
5. A will which on the face appears to have been duly executed is deemed to have been properly
executed until the contrary is proved (omnia praessumuntur solemniter et rite esse acta) all
things are rightly done, unless the contrary.
Privileged Wills
The concept of Privileged Wills was introduced by the English Wills Act 1837.
It's afforded certain categories of public servants to write will without conforming strictly to the
legal and formal requirements of the Wills Act.
Such persons were seen to be privileged and enjoyed some preferential treatment due to the
hazardous and perilous nature of their public service.
There were three categories of workers who fell under this privileged class they included
a soldier in actual military service •
Mariners or seaman being at sea
any member of Her Majesty's naval or marine forces so circumstanced that if they were a soldier
they would be actual military service.
What makes it a privilege ?
It may be made in writing or by word of mouth In the Estate of Yates, decd., [1919] P. 93).
• It didn't matter if the Testator was a minor (Dalrymple v. Campbell, [1919] P. 7);
Re, Beech, Beech v. Public Trustee, [1923] P. 46, at p. 56).
Armed Forces Wills (s. 6)
The English idea of exempting a category of public servants from fully complying with the legal
requirements of writing wills is replicated in Ghana. However, unlike English law, Ghana law does
not refer to it as privileged wills. We simply refer to it as Armed Forces Wills as captured under
section 6 of Act 360
The law
Sec 6(1) Despite a provision of this Act to the contrary, a member of the Armed Forces of
whatever age may, while engaged on active service, make a will
Who is a member of the Ghana Armed Forces?
The Armed Forces Act, 1962 Act 105, at section 98, defines the Ghana Armed Forces as
comprising the Army, the Navy, and the Air force. Therefore any officer who serves under any of
these three Forces is a member of the Ghana Armed Forces.
Who is a member in active service?
The Wills Act does not define who a member of the GAF is. However
Active Service has been defined by section 114 of the Armed Forces Act, 1962 (Act 105) as
a) service in operation against an enemy or in a foreign country in operations for the protection
of life or property or relating to military occupation of a foreign country,
b) service in operation for the preservation of public order,
c) service for purpose of relief in cases of emergency and d) service for any other purpose
appearing to the President to be expedient
The form
6(1)(a) in written and unattested form, if the material provisions and signature are in the
handwriting of the testator, or
(b) in written form, whether or not in the handwriting of the testator, and attested by one
witness, or
(c) orally before two witnesses
It means that a military officer, whiles in active service can make a will in three ways:
I. No witnesses at all if the will is in writing. But the material provisions and the signature must be
in the testator's own handwriting
II. One witness only if the will is in writing, (whether written by him personally or on his behalf)
III. Two witnesses if the testator makes the will Orally
2) A beneficial disposition of or affecting a property, other than charges or directions for the
payment of a debt given by a will made under this section to a witness to that will, is void unless
the will is duly executed, if written, or witnessed, if oral without attestation and without the
attestation of any other person.
A witness can be a beneficiary just like under the regular form of wills; if the execution or
attention is lawfully done
3) A will made in accordance with this section remains valid even though the testator censes to
be a member of the Armed Forces.
4) A will made in accordance with this section may be revoked by another will made in
accordance with this section or by means of a revocation provided in section 9.
5) A will made in accordance with this section may revoke an earlier will made by the testator in
accordance with section 2.