An Assessment of the Doctrine of Commorientes and Its Implications for the Devolution of Testate and Intestate Property in Ghana

Abstract

The Wills Act 1971 and the Intestate Succession Act 1985 embody commorientes rules that are inconsistent, unfair to one of the deceased persons and arguably undermine the expectations of Ghanaians. While the former presumes that a testator predeceases a beneficiary, the latter presumes that the older spouse died before the younger. Though these presumptions are essential for establishing entitlement to property, it would seem that they work to the advantage of one of the parties and to the detriment of the other. Accordingly, the commorientes rules must be modified to include presumptions that are equitable and consistent with the socio-cultural expectations of Ghanaians. This can be achieved by resorting primarily to expectations regarding succession at customary law.