Introduction
Land is one of the most significant forms of property that individuals acquire during their lifetime. In Ghana, land m;ay be transferred during the owner’s lifetime through transactions such as conveyances, leases, gifts and assignments. However, an owner may also determine who should receive his or her interest in land after death by making a will.
A testamentary disposition of land is particularly important because death does not necessarily mean that the deceased’s land automatically becomes the property of the person named in the will in a manner that permits immediate dealings with the property. There is an important legal and administrative process between the making of the will, the death of the testator, the grant of probate, administration of the estate, assent to the devise and, where applicable, registration of the beneficiary’s interest.
The principal statutory framework includes the Wills Act, 1971 (Act 360), the Administration of Estates Act, 1961 (Act 63) and the Land Act, 2020 (Act 1036). The constitutional framework governing land ownership, particularly restrictions applicable to non-citizens and the special constitutional status of stool lands, must also be considered.
This article examines how land is transmitted through a will in Ghana, the legal requirements for a valid testamentary disposition, the role of executors and personal representatives, the effect of probate and assent, registration of the beneficiary’s interest, and common problems that can arise.
1. What Does It Mean to Transfer Land Through a Will?
A transfer of land through a will is technically a testamentary disposition.
The owner of the land, known as the testator, makes a valid will specifying what should happen to his or her property upon death. The person receiving the land is generally referred to as a devisee.
For example:
“I devise my residential property situated at East Legon, Accra, covered by Land Certificate No. XXXXX, to my daughter, Ama Mensah, absolutely.”
The intention is that upon the testator’s death, Ama will ultimately become entitled to the interest in the property specified in the will.
However, it is important to distinguish between:
- the will creating the testamentary intention;
- the death of the testator;
- the grant of probate;
- the administration of the estate;
- assent or conveyance by the personal representative; and
- registration of the beneficiary’s interest where registration is required.
The process is therefore more accurately described as transmission of the deceased’s interest in land through the administration of the estate, rather than simply saying that the will itself immediately changes the registered proprietor.
2. The Testator Must Have Capacity to Make the Will
The starting point is the Wills Act, 1971 (Act 360).
Section 1 provides that a person who is 18 years or above may make a will in writing in accordance with the Act and may dispose of property which belongs to that person or to which the person will become entitled.
Therefore, the first question when examining a testamentary transfer of land is:
Did the deceased have testamentary capacity when the will was made?
Capacity is important because a will made by a person who lacked the requisite mental capacity may be challenged.
The Act also provides that a will, or a provision in a will, obtained by fraud, duress or undue influence is void.
This becomes particularly important in disputes involving elderly testators, competing beneficiaries, family members or persons who allegedly exerted pressure on the deceased.
3. The Will Must Comply With the Statutory Formalities
A person cannot simply write an informal note saying:
“When I die, my house should belong to my son.”
The document must satisfy the requirements of the Wills Act.
Section 2 provides that a will must be in writing and signed by the testator or by another person at the testator’s direction. The statutory requirements concerning execution and attestation must also be satisfied.
Consequently, when dealing with land, lawyers should not treat the testamentary disposition in isolation from the validity of the entire will.
A defective will can produce substantial litigation even where the deceased’s intention concerning the land appears obvious.
4. The Testator Must Have an Interest Capable of Being Transmitted
A person cannot devise better title than the person actually possesses.
Suppose a testator claims to own a particular parcel of land but in reality holds only a leasehold interest. The will cannot magically transform that leasehold into an allodial title.
Similarly, if the testator’s interest is subject to:
- a mortgage;
- an existing lease;
- restrictions;
- customary interests;
- an overriding interest;
- litigation; or
- another registered interest,
the beneficiary generally takes the interest subject to the legal circumstances affecting it.
This is why title investigation remains important even after a will has been produced.
The Land Act recognises a range of registrable interests, including freehold and leasehold interests and certain customary interests.
5. A Will Does Not Override the Nature of the Deceased’s Land Interest
This is a particularly important principle in Ghanaian land practice.
A will may determine who should receive the deceased’s interest, but it does not alter the nature of the interest itself.
For example, assume Kwame holds:
a 50-year leasehold interest in a residential property.
Kwame’s will gives the property to his daughter.
The daughter does not acquire an entirely new freehold interest simply because the property was described as “my land” in the will.
She receives the interest that the deceased was legally capable of transmitting, subject to the applicable law and the terms of the deceased’s interest.
6. The Effect of Death on the Estate
Upon the death of the testator, the deceased’s property becomes part of the estate to be administered.
The will identifies the deceased’s testamentary wishes, but the estate still has to pass through the appropriate administration process.
This is where the role of the executor becomes important.
An executor is appointed under the will to administer the estate in accordance with the law.
Where probate is granted, the executor or other appropriate personal representative becomes responsible for administering the deceased’s estate, including dealing with land forming part of the estate.
7. Probate Is a Critical Step
Where a person dies leaving a will, the executor generally needs to obtain probate.
Probate is the legal process through which the will is recognised for purposes of administration and authority is granted to the executor to administer the estate.
This distinction is important:
The will expresses the deceased’s testamentary wishes; probate gives the executor the legal authority to administer the estate.
A beneficiary should therefore not simply take the will to the Lands Commission and assume that the land can immediately be registered in the beneficiary’s name.
The estate administration process must first be properly established.
8. The Role of the Personal Representative
The personal representative is central to the transfer of estate property.
Under the Administration of Estates Act, 1961 (Act 63), a personal representative may assent to the vesting of an estate or interest in immovable property in a person who is entitled to it by devise, bequest, devolution or otherwise.
This is the mechanism by which the beneficiary’s entitlement can be formally completed.
In simple terms:
Testator dies → estate is administered → beneficiary is identified → personal representative assents to the devise → beneficiary’s interest is vested → registration/documentation is completed where necessary.
9. What Is an Assent?
An assent is a formal act by the personal representative recognising and vesting property in the person entitled to it under the will.
Section 96 of the Administration of Estates Act provides for the personal representative to assent to the vesting of an estate or interest in immovable property in the person entitled to it. The Act further provides that the assent operates to vest the relevant estate or interest in that person and, unless a contrary intention appears, relates back to the death of the deceased.
This is one of the most important provisions when dealing with testamentary transfers of land.
Example
Mr Mensah dies leaving a valid will stating:
“I devise my house at Adenta to my son, Kofi Mensah.”
Probate is granted to the executors.
The executors identify the Adenta property as part of the estate and determine that Kofi is the beneficiary under the will.
The executors then execute the appropriate assent or conveyance in favour of Kofi.
Kofi can then take the necessary steps to have his interest appropriately recorded or registered.
10. Why the Assent Matters
A common misconception is:
“If my name is in the will, the property is automatically registered in my name.”
That is not a safe approach to land transactions.
The will establishes the testamentary disposition, but estate administration and the formal vesting of the property remain important.
The Administration of Estates Act specifically recognises the assent as an instrument capable of vesting the deceased’s immovable property in the person entitled to it.
This distinction becomes especially important when the beneficiary wants to:
- sell the property;
- mortgage it;
- lease it;
- develop it;
- transfer it to another person;
- use it as security;
- prove title to a purchaser; or
- register the interest at the Lands Commission.
11. The Land Act, 2020 and Testamentary Transfers
The Land Act, 2020 (Act 1036) is particularly important because it expressly recognises transfers of land occurring by will or upon intestacy.
Section 36 provides that the ordinary statutory requirements concerning certain written transfers do not apply to a transfer or contract for the transfer of an interest in land that takes effect by:
- operation of law;
- certain equitable principles;
- court order;
- will or intestacy;
- prescription;
- certain short leases;
- licence or profit; or
- oral grant under customary law.
This is significant.
It means that a testamentary disposition is treated differently from an ordinary lifetime conveyance.
A will is not simply an ordinary land-transfer instrument executed between a transferor and transferee during the testator’s lifetime.
12. Registered Land Requires Particular Care
Where the deceased’s land is already registered, the Land Act becomes especially important.
Section 132 provides that registered land or an interest in registered land must be disposed of in accordance with the Land Act and that a disposition otherwise than in accordance with the Act does not create, extinguish, transfer, vary or affect the relevant right or interest.
Accordingly, after the estate administration process, the beneficiary should ensure that the appropriate documentation is presented for registration.
The objective is not merely to possess the will.
The objective is to ensure that the land register accurately reflects the person who is now entitled to the interest.
13. Registration of the Beneficiary’s Interest
Registration is particularly important in modern Ghanaian land practice.
The Lands Commission has emphasised that registration under the Land Act is compulsory for registrable land interests and that applications for registration are submitted through the relevant Lands Commission processes.
The practical documentation may include, depending on the circumstances:
- the original or certified copy of the will;
- probate;
- the grant and relevant court documents;
- death certificate;
- assent or appropriate conveyance;
- existing land certificate or title documents;
- approved site/cadastral plan where required;
- evidence of payment of applicable fees and taxes;
- identification documents; and
- other documents required by the Lands Commission.
The exact documentation will depend upon whether the property is within a title registration area, whether it is registered under the deeds system, the nature of the deceased’s interest and the circumstances of the estate.
14. A Will Must Accurately Identify the Property
One of the most common drafting problems in testamentary dispositions of land is inadequate identification of the property.
Consider the clause:
“I give my house in Accra to my daughter.”
This may be insufficient where the testator owns several properties in Accra.
A stronger drafting approach would identify the property by reference to relevant title documentation, location and description.
For example:
“I devise my leasehold interest in the residential property situated at East Legon, Accra, more particularly described in Land Certificate No. [●], to my daughter, [NAME], absolutely.”
The objective is to minimise uncertainty.
A lawyer drafting a will involving substantial land holdings should conduct appropriate due diligence rather than relying solely on the client’s informal description of the property.
15. What Happens Where the Land Is Mortgaged?
A will does not necessarily eliminate liabilities attached to the deceased’s property.
Suppose:
Mr A owns a house valued at GHS 3 million but has an outstanding mortgage of GHS 1 million.
Mr A’s will gives the house to his daughter.
The daughter should not assume that the mortgage disappears upon death.
The estate must be administered taking account of the deceased’s debts and liabilities and the terms of the relevant security.
This illustrates an important principle:
A beneficiary generally receives the deceased’s interest subject to the legal obligations affecting that interest, unless the law or the relevant instruments provide otherwise.
A solicitor administering the estate should therefore conduct a proper investigation of encumbrances before treating the property as freely transferable.
16. What If the Beneficiary Is a Minor?
The Land Act contains an express rule concerning dispositions of land to infants.
Section 167 provides that where a purported disposition, including a disposition by the will of a deceased proprietor, is made to an infant, the infant is not registered as proprietor until attaining 18 years. Instead, the disposition operates so that the land or interest is held in trust for the infant.
This is extremely important in estate planning.
Example
A testator provides:
“I devise my house at Tema to my 10-year-old son.”
The child does not simply become the registered proprietor immediately.
The statutory framework requires the interest to be held in the appropriate manner until the child reaches the prescribed age.
The will should therefore be drafted with the child’s minority in mind.
17. What If the Beneficiary Is a Non-Citizen?
This requires special attention in Ghana.
Article 266 of the 1992 Constitution provides restrictions on land interests held by non-citizens. In particular, a non-citizen cannot acquire a freehold interest in land in Ghana, and a leasehold interest granted to a non-citizen cannot exceed 50 years at any one time.
Therefore, a Ghanaian testator should not assume that a will can circumvent constitutional restrictions by simply naming a foreign beneficiary.
Example
A Ghanaian owns an interest in land and states:
“I devise this land in freehold to my foreign national beneficiary.”
The testamentary wording cannot override the Constitution.
The nature and duration of the interest capable of being vested in the non-citizen must comply with the constitutional restrictions.
This issue is particularly important where Ghanaians are estate-planning for spouses, children or business partners who are not Ghanaian citizens.
18. Stool Lands and Customary Land Require Additional Care
Land in Ghana does not have a uniform ownership structure.
A lawyer dealing with testamentary land must determine whether the property concerns:
- private land;
- family land;
- stool land;
- skin land;
- state land;
- public land;
- customary freehold;
- leasehold; or
- another recognized interest.
The Constitution provides that stool lands vest in the appropriate stool in trust for the subjects of the stool according to customary law and usage. It also places constitutional restrictions on dispositions of stool land.
Consequently, one cannot assume that a person who occupies or possesses customary land necessarily has an interest that can be devised in exactly the same manner as registered private leasehold property.
The source and nature of title must first be established.
19. The Will Cannot Defeat the Testator’s Lack of Title
Consider this scenario:
Ama writes in her will:
“I give Plot 10 to my son.”
After her death, investigation reveals that Plot 10 actually belongs to her sister.
The will does not transform the sister’s property into Ama’s estate.
This demonstrates the fundamental principle:
A testamentary disposition operates upon the property or interest belonging to the testator; it does not create ownership where the testator had no transferable interest.
Consequently, title investigation is essential in estate administration.
20. The Importance of Proper Land Description
For practitioners, the land clause in a will should ideally contain sufficient identifying information.
Depending on the property, the drafting lawyer may consider:
- location;
- plot number;
- house number;
- land certificate number;
- lease number;
- indenture particulars;
- registration particulars;
- site plan/cadastral plan reference;
- acreage or dimensions;
- date of acquisition;
- nature of interest; and
- relevant boundaries.
The purpose is to eliminate ambiguity.
A clause such as:
“I give my property at Spintex”
may be problematic if the testator owns multiple properties in that area.
21. What Happens Where the Will Is Ambiguous?
Ambiguity in a testamentary disposition may create litigation.
For example:
“I give my land at Kumasi to my eldest child.”
Questions immediately arise:
- Which land?
- What if there are three properties in Kumasi?
- Who is the “eldest child”?
- Does “land” include the building?
- Is the beneficiary receiving the entire interest?
- What happens if the property is jointly owned?
- What happens if the testator had already sold the property?
These questions demonstrate why wills involving substantial land assets should be professionally drafted.
22. Jointly Owned Property
Another important issue is whether the deceased was the sole owner.
If land was jointly held, the consequences of death may depend on the legal form of co-ownership and the applicable rules governing the interest.
A testator cannot simply devise another person’s interest.
The lawyer must therefore establish:
What exactly did the deceased own?
This question should be answered before drafting the will.
23. Can a Beneficiary Sell the Land Immediately After the Testator Dies?
Not necessarily.
A beneficiary should not assume that simply because the will names him or her, the beneficiary can immediately execute a sale agreement as though the beneficiary were already the registered proprietor.
The estate administration process must be properly completed.
The personal representative may need to assent to the property and the beneficiary may need to complete the relevant registration procedures.
Only after the beneficiary’s legal interest has been properly established should subsequent transactions be undertaken.
24. The Lands Commission’s Role
The Lands Commission is central to the registration and management of land interests in Ghana.
The Commission’s published guidance under the Land Act confirms that land registration is governed by the statutory framework and that documents such as wills, probate-related documents and letters of administration can be relevant to objections and land-registration processes.
Thus, the estate lawyer should treat the probate process and land-registration process as connected but distinct legal processes.
25. A Practical Procedure for Transferring Land Under a Will
A simplified professional workflow is:
Step 1 — Obtain the original will
Establish that the document relied upon is the operative will.
Step 2 — Confirm validity
Examine:
- testamentary capacity;
- execution;
- witnesses;
- potential fraud;
- undue influence;
- duress; and
- subsequent wills or codicils.
Step 3 — Obtain the death certificate
The death of the testator triggers the administration process.
Step 4 — Apply for probate
The executor applies for the appropriate grant.
Step 5 — Identify the land
Conduct proper title searches and review:
- land certificates;
- indentures;
- leases;
- site plans;
- registration records; and
- encumbrances.
Step 6 — Establish the deceased’s interest
Determine whether the deceased owned:
- freehold;
- leasehold;
- customary interest;
- usufructuary interest;
- or another recognized interest.
Step 7 — Identify the beneficiary
Confirm the person entitled under the will.
Step 8 — Deal with estate liabilities
Determine whether the property is subject to:
- mortgage;
- judgment debt;
- tax;
- litigation;
- lease;
- caveat;
- restriction; or
- other encumbrance.
Step 9 — Execute the assent
The personal representative formally assents to the vesting of the property in the beneficiary where appropriate.
Step 10 — Register the beneficiary’s interest
Submit the relevant documents to the appropriate Lands Commission office and complete the applicable registration process.
Step 11 — Obtain evidence of the beneficiary’s title
The beneficiary should retain the relevant registered documents as evidence of ownership or the particular interest acquired.
26. Common Mistakes in Testamentary Transfers of Land
Mistake 1: Assuming the will itself is the land certificate
It is not.
Mistake 2: Failing to obtain probate
A beneficiary should not treat an unprobated will as though the estate administration process has been completed.
Mistake 3: Poor property description
“Give my house in Accra to my son” may be inadequate where several properties exist.
Mistake 4: Ignoring encumbrances
A property may be mortgaged, leased or subject to litigation.
Mistake 5: Ignoring citizenship restrictions
A foreign beneficiary may be constitutionally restricted from acquiring certain interests in land.
Mistake 6: Ignoring minority
A child below 18 cannot simply be registered as proprietor in circumstances covered by section 167 of the Land Act.
Mistake 7: Failing to register the resulting interest
The beneficiary may have a testamentary entitlement but still need to complete the relevant land-registration process.
27. Will vs Lifetime Transfer of Land
The distinction can be summarised as follows:
| Issue | Lifetime transfer | Transfer by will |
| When it operates | During lifetime | Upon death |
| Principal instrument | Conveyance/transfer/assignment etc. | Will |
| Transferor | Living owner | Deceased testator through estate |
| Probate | Generally unnecessary | Central to administration |
| Personal representative | Usually unnecessary | Usually central |
| Assent | Generally not the mechanism | Important in estate administration |
| Registration | Applicable | Applicable where required |
| Capacity | Contractual/conveyancing capacity | Testamentary capacity |
| Effect of death | Transaction may already be complete | Death triggers estate administration |
The Land Act expressly distinguishes testamentary transfers from certain ordinary transfers under sections 34 and 35.
28. Estate Planning: Why Land Should Be Specifically Addressed in the Will
A properly drafted will can significantly reduce uncertainty concerning land.
A testator with substantial property should consider preparing a schedule identifying:
| Property | Location | Interest | Beneficiary |
| Residential house | East Legon | Leasehold | Child A |
| Commercial property | Airport | Leasehold | Child B |
| Land | Tema | Leasehold | Child C |
| Agricultural property | Kumasi | Customary interest | Family trust |
This allows the lawyer to connect each testamentary gift with the underlying legal interest.
29. A Model Testamentary Land Clause
A simplified example may read:
DEVISION OF LAND
I GIVE AND DEVISE my entire right, title and interest in the residential property situated at [FULL LOCATION], [CITY/REGION], Ghana, more particularly described in [LAND CERTIFICATE/INDENTURE/LEASE] No. [REFERENCE], together with all buildings and improvements thereon and all rights and appurtenances attaching thereto, to my [RELATIONSHIP], [FULL NAME], absolutely, subject to any lawful mortgage, charge, lease, restriction, encumbrance or other interest affecting the property at the date of my death.
My Executors shall take all lawful steps necessary to administer the said property and to assent to and facilitate the vesting and registration of my interest in the said property in the beneficiary in accordance with applicable law.
This is only a drafting model. The appropriate clause should be adapted to the nature of the land interest, the circumstances of the testator and the applicable estate and land-registration requirements.
30. The Lawyer’s Due-Diligence Checklist
Before including a substantial parcel of land in a client’s will, counsel should ideally establish:
A. Identity
- Who owns the property?
- Is the client the registered proprietor?
- Is the client the sole owner?
B. Title
- What is the root of title?
- Is there a land certificate?
- Is there an indenture?
- What is the term of the lease?
C. Encumbrances
- Mortgage?
- Charge?
- Caveat?
- Restriction?
- Litigation?
- Existing lease?
D. Nature of land
- Private?
- Family?
- Stool?
- State?
- Customary?
E. Beneficiary
- Ghanaian or non-Ghanaian?
- Adult or minor?
- Individual or trust?
- One beneficiary or several?
F. Drafting
- Is the property sufficiently identified?
- Is the interest accurately described?
- Is the beneficiary clearly identified?
- Are alternative beneficiaries required?
G. Administration
- Who are the executors?
- Are they capable of administering the estate?
- Are trustees required?
- Does the will provide adequate mechanisms for minors?
Conclusion
The transfer of land through a will in Ghana is not simply a matter of writing a person’s name into a testamentary document. It is a multi-stage legal process involving testamentary validity, estate administration, probate, identification of the deceased’s interest, assent by the personal representative and, where applicable, registration of the beneficiary’s resulting interest.
The Wills Act, 1971 (Act 360) establishes the framework for testamentary dispositions; the Administration of Estates Act, 1961 (Act 63) provides important mechanisms for vesting estate property in persons entitled to it; and the Land Act, 2020 (Act 1036) governs the registration and disposition of land interests, expressly recognizing transfers taking effect by will or intestacy.
For practitioners, the central lesson is therefore:
A will determines the testator’s intended succession to the land, but proper estate administration and land-registration procedures give practical legal effect to that succession.
The safest approach is to ensure that the will accurately identifies the property, accurately describes the deceased’s interest, accounts for mortgages and other encumbrances, respects constitutional restrictions on land ownership, and is followed by proper probate, assent and registration procedures after death.