Wills - Validity - Mental capacity - Burden of proof - Burden on party alleging lack of testamentary capacity - Burden not discharged by repeating pleadings on oath - Testator admitted in hospital prior to making will - Medical evidence of state of mind of testator to be produced - Evidence Decree 1975, (NRCD 323) s 15(3).

Wills - Execution - Proof - Burden on party proffering will to prove due execution.

The plaintiffs, as executors, sued the defendants, children of the testator, for a declaration in the High Court that the testator had the mental capacity to make the will in issue and for recovery of all rents from the estate and documents relating to the estate. They claimed also, perpetual injunction to restrain the defendants from interfering with any properties not devised to them. The defendants pleaded that their late father was in such a deteriorated state of health that he could not possibly have given instructions to his lawyer for the preparation of the alleged will or executed same; that the will was invalid in that the two attesting witnesses were not present at the same time when the testator thumbprinted it. They therefore counterclaimed that a previous will of the testator be admitted to probate. The trial court found as a fact that the testator was on admission at the hospital for sometime before he was discharged and decreed that the will be admitted to probate. The defendants appealed to the Court of Appeal.

Held - (1) Section 15(3) of the Evidence Decree 1975 (NRCD 323) provided that unless and until the burden shifted, a party claiming that any person, including himself, was or had been insane or of unsound mind had the burden of persuasion on that issue. The defendants bore the burden of showing that the testator was of unsound mind at the time of the execution of the will. Akenten II v Osei [1984-86] GLR 437 cited.

(2) The burden of persuasion that a testator was of unsound mind was not discharged by the defendants repeating on oath the allegations in their statement of defence. Since the testator was on admission at the hospital for sometime before he was discharged, it should not have been difficult for the defendants to obtain medical evidence on his state of mind at the time he executed the will.

(3) The burden was on the plaintiffs to satisfy the court at the trial of the due execution of the will in accordance with the Wills Act 1971 (Act 360). On the evidence on record it could not be said that the two attesting witnesses were present when the testator thumbprinted the will and the appeal would therefore be allowed.

Cases referred to:

Akenten II v Osei [1984-86] 1 GLR 437.

Essien alias Baidoo (dec’d), In re, Essien v Adisah [1987-88] 1 GLR 539.

Kodua for the defendants-appellants.

Akenteng for the plaintiffs-respondents.

APPEAL from the judgment of the High Court.

ESSIEM JA. This is an appeal from the judgment of the High Court, Kumasi by which that court gave judgment in favour of the plaintiffs. The defendants, being aggrieved by the said judgment have appealed to this court.

The case concerns the estate of the late Nana Osei Akoto. The said Nana Osei Akoto is alleged to have died testate and the action was for the following reliefs:

“1. A declaration that the will of the late Nana Osei Akoto dated 13th June 1986 is valid.

2. A declaration that the late Nana Osei Akoto was of a sound mind and consequently had the mental capacity to make the said will dated 13th June 1986 without any pressure or influence.

3. An order to surrender all documents relating to the estate of the deceased.

4. Recovery of all rents commencing from 1st August 1986 to the date of judgment.

5. Perpetual injunction to restrain the defendants, their agents or servants from interfering with or having any dealings with any properties of the late Nana Osei Akoto which are not devised to them.”

The plaintiffs are the executors of the will of the late Osei Akoto and defendants were two of the children of the deceased.

The defendants in their defence pleaded that their late father was at the time material to this action in such a deteriorated state of health that he could not possibly have been in a state of mind to have given instructions to a lawyer for the making of a will or to execute a will as alleged by the plaintiffs. As the defendants alleged that their late father had executed an earlier will they counterclaimed for “a declaration that it is the said will of their said late father dated August 1972, which is valid and genuine and that that is the only will which ought to be admitted to probate”. The trial court took evidence and held that “there was nothing objectionable about the will of 13 June 1986 and it ought to be admitted to probate”. The appellants were aggrieved by this judgment and therefore appealed to this court on a number of grounds of appeal.

The arguments advanced in support of the appeal may be summed up briefly as follows: that at the time of the alleged execution of the will, the testator was so ill that he could not have executed the will which implied that it was not the testator who executed the will; that the will was not executed in accordance with the law in that the two attesting witnesses were not present at the same time when the testator thumbprinted the will. This, it was submitted, was contrary to section 2(3) of the Wills Act. Finally, that the plaintiffs in their evidence departed from the statement of claim wherein they had pleaded that:

“3. The plaintiffs say that on or about the 13th of June, 1986 the late Nana Osei Akoto invited a lawyer to his residence and made the will which is the subject matter of the suit.”

In their evidence they had stated that the late Nana Osei Akoto went to the office of lawyer Duku, PW5, to instruct him to prepare a will for him. It was argued that the learned trial judge was therefore wrong in accepting the evidence of PW5 that the testator went to his office to give him instructions about the will. Finally it was argued that from the evidence, PW4 and PW3 were not present at the same time when the testator was alleged to have executed the will in dispute. It was contended on behalf of the respondents that the appellants had the burden of showing that the testator was of unsound mind at the time he executed the will. This burden, counsel contended, was not discharged by the appellants. Counsel further argued that on the charge of fraud and undue influence the appellants failed to comply with Order 19 r 6 of the High Court (Civil Procedure) Rules LN140A in that they did not give particulars of fraud or undue influence and therefore any evidence on it should be ignored by the court. It was submitted, in the alternative, that even if there was undue influence, then from the evidence it was against the lawyer and not the testator; that since the lawyer, PW5, was an independent witness his evidence should be accepted.

On the evidential burden on the parties, the case of Akenten II v Osei [1984-86] 2 GLR 437 at p 438 neatly sums up the burden on both the plaintiff and the defendants. In that case Apaloo CJ, sitting as an additional High Court judge, expressed the opinion that:

“The evidential burden assumed by each side in view of the position taken by the parties, was that the plaintiffs must show that the document in respect of which they sought probate was the testamentary wish of G; that he was compos mentis at the date of its execution and was a free agent and lastly, that it was executed and attested in accordance with the requirement laid down in section 2 of the Wills Act, 1971 (Act 360). Upon showing that, the burden then shifted to the defendant to prove the alleged forgery.”

In the instant case the appellants contend that the will was not executed in accordance with s 2(3) of the Wills Act 1971 (Act 360). That section provides that:

“The signature of the testator shall be made or acknowledged by him in the presence of two or more witnesses present at the same time.”

In this appeal two issues are crucial for determination by this court: (a) was the testator in such a state of health as to be capable of executing a will? and (b) was the will executed in accordance with the law? As to the mental state of the testator at the time he executed the will it seems to me that the appellants had the burden of showing that the testator was of unsound mind at the time of the execution of the will for it is provided by s 15(3) of the Evidence Decree 1975 NRCD 323 that:

“Unless and until it is shifted, the party claiming that any person, including himself, is or was insane or of unsound mind has the burden of persuasion on that issue.”

Reading through the evidence I come to the conclusion that that burden of proving that the testator was of unsound mind at the time he executed the will was not discharged. That burden is not discharged by repeating on oath the allegations in the statement of claim. At least since the testator was on admission at the Okomfo Anokye Hospital for sometime before he was discharged, it should not have been difficult for the appellants to have obtained medical evidence on his state of mind at the time he executed the will.

The next burden on which the respondent had to satisfy the court at the trial was the due execution of the will in accordance with the Wills Act 1971 (Act 360). The evidence of the attesting witnesses on this is of crucial importance. PW2 and PW4 were the attesting witnesses. In his evidence-in-chief PW2 testified as follows at p 50 of the record:

“In June 1986 the late Nana Osei Akoto sent for me to come and see something. I went. He asked me to witness him thumbprinting a document and I did. When I went to him one clerk was present. Nana Osei Akoto said that person was a lawyer ... Apart from the lawyer, I also saw an elderly person present. The lawyer and the elderly man were the only persons who were with the testator. Owusu Frimpong later came. In the presence of those present Nana Osei Akoto told me to thumbprint the document as a witness for him. When I finished I did not see any person do anything in my presence.”

Under cross-examination he denied a suggestion that Owusu Frimpong did not come to meet him with Nana Osei Akoto. He answered that he did. Then PW4 testified as follows in his evidence-in-chief:

“I am Owusu Frimpong. I work at Zenith Assurance as a Messenger. I live at Odum. I know the late Nana Osei Akoto of Offinso. He is dead. I know PW3. One Friday at about 10.30 Opanin Osei Akoto sent for me. I went and met him. I met Nana Osei Akoto with a lawyer. Apart from the lawyer there was no other person with the deceased. He asked me to witness a document he was thumbprinting. I did so by signing. After that he thanked me and I went away. I notice my signature on exhibit A.”

It is apparent from the evidence that at the time the witness was with the testator PW2 was not present. He was not cross-examined on this either.

In re Essien alias Baidoo (deceased), Essien v Adisah [1987-88] 1 GLR 539, a case which involved the validity of a will, the Court of Appeal held at p 540 of the report that:

“(1) since the crux of the matter was whether the will had been signed by the testator, and if so, whether it had been properly executed by him in accordance with the provisions of the Wills Act, 1971 (Act 360), the proof of the affirmative rather lay squarely on those who propounded the will. Consequently the court could not presume that the will had been signed by E and in the presence of two witnesses in the face of the positive evidence from one of the attesting witnesses that he never saw E signing the will...

(3) The provisions of Act 360, s 2(1) and (3) would not be complied with unless both witnesses attested and subscribed after the testator had made his signature or had acknowledged the same to them when both were actually present at the same time. However there could not be acknowledgement unless the witnesses either saw or had the opportunity of seeing the testator’s signature, despite the fact that the testator might have expressly declared that the document to be attested to was his will. Since it was clear on the evidence that the late E neither signed the will in the presence of the attesting witnesses nor was his signature already on the will at the time the attesting witnesses subscribed to the will, the High Court judge was right in pronouncing against the validity of the will.

(4) The court was enjoined to decide the case in accordance with the provisions of the Act 360, even though its decision would have the effect of defeating the purpose or intentions of the testator. Therefore although the court always had a strong inclination to carry into effect clear intentions of deceased persons, where the intentions were contained in an instrument purporting to be a will whose execution did not comply with the provisions of the law, there was very little that could be done but pronounce against it, the extent of bequests and the number of beneficiaries notwithstanding.”

One must now return to the evidence of the two attesting witnesses. In assessing the evidence of the two attesting witnesses the learned High Court judge made the following observations:

“From the face of the evidence in chief it is apparent the witnesses did not see the testator thumbprint the document in their presence or acknowledge his thumbprint in the presence of the witnesses. The missing link was however provided by the examination of lawyer Duku, by learned counsel for the defendants. Lawyer Duku was asked:

“Q. The elderly man and the young man were never present at the same time to see Nana Osei Akoto thumbprint the document?”

Lawyer Duku’s answer was as follows:

“A. They were present. The elderly man first came in. Later the young man also came. They both met me into the room of Nana Osei Akoto.”

He was then asked:

“Q. The old man (i.e. Nana Osei Akoto) never thumbprinted exhibit A in the presence of the two attesting witnesses?”

To this lawyer Duku replied:

“The late Nana Osei Akoto first thumbprinted the will thereafter the elderly person thumbprinted. The young man signed it after the elderly man.”

The elderly man is Kwabena Wiafe, PW3. The young man is Owusu Frimpong PW4. Their evidence shows that the testator thumbprinted the document in their presence. There is no doubt therefore that the formalities required by s 2 of the Wills Act 1971 (Act 360) were complied with. The testator thumbprinted the will in the presence of the two attesting witnesses who in the presence of the testator thumbprinted and signed their names respectively.”

With great respect to the learned trial judge, the evidence of the two witnesses does not support this statement. The evidence of PW4 especially contradicts him. Part of his evidence which I have already referred to is that:

“Apart from the lawyer there was no other person with the deceased. He asked me to witness a document he was thumbprinting. I did so by signing. After that he thanked me and I went away.”

As I have pointed out earlier this shows that the two attesting witnesses were never present at the same time when the testator thumbprinted the alleged will. The learned trial judge therefore was wrong in stating that the two attesting witnesses were present when the testator thumbprinted the will. This contradicts the evidence of PW4. It is plain that the evidence of PW5 and that of PW4 on the execution of the will is contradictory. It was the duty of the plaintiffs who were propounding the will to lead evidence to show that the will they were propounding in solemn form was executed in accordance with the Wills Act.

Throughout the case the appellants contended that the late Baffour Akoto was at the time he was alleged to have executed the will so ill that he was in no sound mind to execute a will.

From the evidence of DW1, Dr John Glover Addo Wood, the late Baffour Osei Akoto was admitted at the Okomfo Anokye Hospital, Kumasi on 8 September 1985 and discharged on 25 October 1985.

“When he came on 8th September 1985 he could not lift leg and arm, but at the time he was discharged he could raise the left arm and leg a bit but he would not stand. He was re-admitted on 30th May 1986. This time he had signs of bronchia asthmalia heart failure ... The family wanted me to keep him because of the paralysis but I said that there was no point in doing that.”

The evidence of PW5, the lawyer who prepared the alleged will, is that the testator went to his office to instruct him to prepare a will for him. He had forgotten the date the testator gave him the instructions but it was about a month before the will was executed on 13 June 1986. This means the witness received his instructions about 13 May 1986. There is evidence from the doctor who treated the late Nana Akoto at the hospital that the deceased was admitted on 8 September 1985. He was discharged on 25 October 1985. He was re-admitted on 30 May 1986 and discharged on 31 May 1986. He was re-admitted on 5 July 1986 and died on 8 August 1986. From the evidence of this witness the late Nana Akoto was not on admission from 30 May 1986 to 4 July 1986. The evidence of the attesting witnesses, as already referred to in this judgment, shows that the late testator got PW2 to witness his signature sometime in June 1986. There is no evidence as to when PW4 was contacted but I have already demonstrated that the two attesting witnesses were never present at the same time when the testator was alleged to have executed the will.

In my opinion having regard to the circumstances surrounding the execution of the will it was incumbent upon the respondent to prove conclusively that the will was executed in accordance with the Wills Act. In my humble opinion they failed to do this. I shall therefore allow the appeal and declare that the will of the late Nana Osei Akoto dated 13 June 1986 was not executed in accordance with the law and is therefore invalid. I therefore allow the appeal.

ADJABENG JA. I agree.   

FORSTER JA. I also agree.          

Appeal allowed.

S Kwami Tetteh, Legal Practitioner.