Article: Lapse, anti-lapse dispositions and per stirpes distribution under Ghana’s Wills Act, 1971 (Act 360)

At English Common Law, which is applicable to both Ghana and the USA (excluding Louisiana), if an intended beneficiary under a will died before the maker of the will (testator), or before a point in time at which she was required under the will to survive the testator, the testamentary gift or disposition, lapsed (failed).

The lapsed gift went to the residuary clause unless the will provided for an alternative means of disposition. In the absence of a residuary clause, the gift “passed through intestacy.”

To avoid such cases of lapsed testamentary gifts, some jurisdictions have passed anti-lapse statutes. In most of the states of the USA, if the deceased beneficiary was related to the testator (protected/covered relationship), and the deceased beneficiary had biological or adopted children (issue), then those children will succeed to the gift to prevent lapse/failure, unless a contrary intention was expressed in the will.

Ghana’s equivalent of an anti-lapse statute provision is found specifically under section 8 of the Wills Act, 1971 (Act 360) which provides as follows:

Section 8 – Lapsed Dispositions

(1) A disposition made to a person who predeceases the testator or which is contrary to law or otherwise incapable of taking effect shall lapse and fall into residue, unless a contrary intention appears from the will.

(2) Notwithstanding subsection (1), a disposition made by a testator to his descendants (other than for an estate determinable at or before the death of that descendant) shall not lapse where that descendant predeceases the testator leaving issue surviving the testator, but shall take effect as a disposition to such issue per stirps [sic], unless a contrary intention appears under the will.

Under a per stirpes distribution system, the testamentary gift which the deceased ancestor would have taken, had she not predeceased the testator, is divided equally among the first generation of her issue (surviving children). Any of such issue who is alive is entitled to their share.

Any of them who has died would have their share pass on to their own children equally. Any of them who has died at the generation under consideration, will not get anything. Some jurisdictions apply per capita with representation or per capita at each generation instead of per stirpes distribution.

Robert Nii Arday Clegg

The writer is the Founder & Head at CLEGG LAW, a law firm based in Accra-Ghana. Clegg is a graduate of the Harvard Law School Class of 2014 and is both an Attorney & Counselor-at-Law (New York State) and a Barrister & Solicitor of the Supreme Court (Ghana).

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