Wills - Executor - Appointment - Clause appointing executor appearing after testator’s signature in the will - Testator’s signature not attested to by witnesses - Testator not member of Armed Forces - Appointment of executor null and void - Wills Act 1971 (Act 360) s 2(2), (5) and s 6 - Interpretation Act 1960 (CA 4) s 27.

Wills - Signature - Attestation - Testator signing will in a room - Whether presence of persons in room, without more, constituted attestation.

Evidence - Admissibility - Objection - Evidence admitted without objection - Trial judge entitled to grant relief based thereon.

Section 2(2) and (5) of the Wills Act 1971 (Act 360) provides thus:

 “2 (2) No signature shall be operative to give effect to any disposition or direction which is underneath or which follows it, or which is inserted after the signature has been made...

(5) The witnesses shall attest and sign the will in the presence of the testator, but no form of attestation shall be necessary.”

Section 27 of the Interpretation Act 1960 (CA 4) also provides that:

 “In an enactment made after the passing of this Act, ‘shall’ shall be construed as imperative and ‘may’ as permissive and empowering.”

The deceased made a holograph and died a few days later. Probate of the alleged holograph was granted to one of the executors but the father of the deceased and the widow, married under the Ordinance, took action in the High Court, Accra, against the executor and one Juliana Nkansah, who was living with the deceased in the matrimonial home at the time of his death as his wife, for a declaration that the holograph was invalid as a will and for an order revoking the probate on the ground that the holograph was attested to by one witness only contrary to the Wills Act 1971 (Act 360); that the signature of the testator was not made or acknowledged by him in the presence of two or more witnesses present at the same time; that there was no indication on the said holograph to show that the only witness was present at the time when the testator signed the holograph; that the appointment of the executor was made outside the body of the holograph and that the signature thereto was not attested by any witness. It was found as a fact that only one witness attested the will. The trial judge held that non-compliance with section 2(2) of the Act made the appointment of the two executors void since the appointment was made after the will was signed by the testator but the signature appearing after the appointing clause was not attested. It was held further that non-compliance with section 2(5) of the said Act rendered the entire will invalid as it was not attested or signed by at least two witnesses. On appeal, counsel for the appellant argued that sections 2(5) and (6) of the said Act did not go to the validity of the will but contained only directives, non-compliance of which did not render the will invalid. He argued further that the requirement in section 2(5) that the will be attested by witnesses was satisfied by the mere presence at the time of two witnesses including the deceased’s cousin, in the room in which the deceased executed the will. He submitted further that the trial judge failed to give due regard to the fact that the holograph was in the handwriting of the deceased, which he maintained, satisfied the requirement of attestation. Lastly, he argued that the trial judge erred in deciding that a building belonged to the deceased when no such issue was before the court. Counsel for the respondent replied that that issue regarding the building arose from the pleadings and that evidence thereon was adduced without objection.

Held - (1) To accept the appellant’s submission would mean interpreting the mandatory provisions in sections 2(2), (5) and (6) of Act 360 as permissive requirements for making a will. In view of the provision in section 27 of the Interpretation Act 1960 (CA 4) it was crystal clear that the provisions in section 2(2) and (5) of the Act were mandatory and that the trial judge decided rightly. In Ghana only members of the Armed Forces engaged on active service could make unattested wills under section 6(1) of our Wills Act 1971 (Act 360). On the facts this provision did not apply to the deceased. Akenten II v Osei [1984-86] 2 GLR 437, In re Essien alias Baidoo (dec’d), Essien v Adisah [1987-88] 1 GLR 539 applied.

(2) The presence of those persons, including the cousin of the testator, in the sitting room at the time of the execution of the will did not, in itself, constitute an attestation of the deceased’s signature.

(3) The trial judge was right in determining the issue of ownership of the building as the parties, including the appellant, had adduced evidence on the matter without any objection.

Cases referred to:

Akenten II v Osei [1984-86] 2 GLR 437.

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

APPEAL from the decision of the High Court.

C B Zwennes (with him Peter Zwennes) for the appellant.

D Anyadi for the respondents.

ADJABENG JA. On 5 November 1992, we dismissed the 2nd defendant-appellant’s appeal and reserved our reasons. We now give the reasons for so deciding.

On 13 November 1980, Kwesi Awere-Kyere, now deceased, wrote down and signed what he thought was his last will. A few days later, that is, on 18 November 1980, he died. Probate of the alleged will was granted to one of the executors named therein, A A Forster, on 13 April 1981. The father of the deceased, Opanin Kwesi Kyere, and the deceased’s widow, Rose Awere-Kyere, who was married under the Marriage Ordinance, however, thought that the document in respect of which probate had been granted was in law not a will. They, therefore, took action at the High Court, Accra, to challenge the validity of the alleged will. They took the action not only against the grantee of the probate, A A Forster, but also against Juliana Nkansah, who claimed to be a wife of the deceased and who was living with the deceased in the matrimonial home at the time of his death. Among the seven reliefs claimed by the plaintiffs are the following:

 “(a) a declaration that the holograph dated 13th day of November 1980, purported to be the will of Kwesi Awere-Kyere, is not a will as provided for in the Wills Act 1971 (Act 360).

(b) an order revoking the grant of probate of the said holograph to the defendants made on the 13th April 1981.”

The basis of the plaintiffs’ action has been clearly set out in paragraphs 4 and 5 of their accompanying statement of claim. They state therein as follows:

 “4. The plaintiff says that the said holograph was not a will within the terms of the Wills Act and ought therefore to be declared invalid, void and of no effect.

PARTICULARS

(a) The said holograph was not properly and validly attested to since the attestation thereon was done by only one witness contrary to s 2(3) of the Wills Act 1971 (Act 360).

(b) Although the appointing clause naming the executors was placed outside the body of the holograph the separate signature of the deceased Kwesi Awere-Kyere was not attested to by any witness as provided for by the Wills Act 1971 (Act 360).

(c) The signature of the testator was not made or acknowledged by him in the presence of two or more witnesses present at the same time nor is there any indication on the said holograph to show that the only witness was present at the time when the testator signed the holograph.

5. The executors having been wrongfully appointed they could not in law be granted probate of the said will or at all.”

The defendant denied these averments. The trial judge, however, accepted the plaintiffs’ contention and declared the holograph invalid as a will. The 2nd defendant, Juliana Nkansah, appealed to this court against the decision.

Before us, counsel for the 2nd defendant-appellant argued the following grounds of appeal: the original ground 3(a) and (b), the additional ground 1(a), (b), (c) and (d), and additional ground 2. The original ground 3 states as follows:

“3. (a) The learned trial judge erred in law in declaring the holograph will of the deceased Akwasi Awere-Kyere invalid for the reasons given by him in his judgment/decision.

(b) The learned trial judge misconstrued the provisions in section 2 ss 1 - 6 of the Wills Act 1971 Act 360 and thereby misdirected himself in law as to their meaning and effect on the case before him.”

The said additional grounds are as follows:

 “1. The learned trial judge misdirected himself in law and on the evidence -

(a) when he erroneously held that the testator did not comply with s 2(2) and s 2(3) and s 2(5), when in fact only s 2(5) was not fully complied with.

 (b) By further erroneously holding that s 2(3) required the two witnesses to sign the will.

 (c) By not holding the provision of s 2(5) of Act 360 to be merely directory requiring substantial compliance only and not mandatory for the purpose of the validity of the will, more especially so in the circumstance of the holograph will in the action.

 (d) By failing to regard the time-tested rule of law and practice of the court that a holograph will, as in this case, written in the hand of the testator himself is itself a sufficient attestation of the will for the purpose of the Wills Act.

 2. The learned trial judge should have reserved the question of ownership of the second building and other property in No 7 Nmati Lane for separate trial, but erroneously failed to do so, and wrongly proceeded to adjudicate the question of their ownership as between the plaintiff and 2nd defendant which was not an issue.”

Counsel for the 2nd defendant-appellant first argued the original ground 3(1) and (b), and the additional ground 1(a), (b) and (c) together. The arguments advanced in respect of these grounds of appeal are that while section 2(2) and (4) of the Wills Act 1971 (Act 360) gives directions to the testator as to how he should make his will to be valid, section 2(5) and (6) of the said Act 360 gives directions not to the testator but to third parties who are not interested in the will except as witnesses. Thus ss 2(3) and (4) which, to counsel, are linked up with s 2(1) of the said Act 360 all go to the validity of the will. That is, compliance or non-compliance with any of the conditions set therein would determine the validity or otherwise of the will. But that s 2(5) and (6) of the said Act does not go to the validity of the will but contains only directives, non-compliance with which should not render the will invalid. According to counsel, in section 9 of the English Wills Act of 1837, the requirements necessary for making a will valid have been preceded by the words: “No will shall be valid unless ...” and that non-compliance with any of these requirements rendered the will invalid. In our Wills Act 1971 (Act 360), however, argued counsel, because these requirements have been spelt out in separate subsections in section 2 thereof and have not at all been linked up directly with what counsel would consider the “magic words” mentioned above, our parliament did not intend the requirements in some of these subsections of section 2 of our Wills Act to have the same effect as they have in section 9 of the English Act. In counsel’s view, our parliament intended that only the signature of the testator was necessary for the validity of a will. It is not so, for example, in respect of the requirement of attestation by at least two witnesses.

As should be expected, counsel for the respondent disagrees with such a sweeping and novel proposition. We are also not impressed by these arguments. In the first place, to accept such a proposition would mean, for example, our interpreting section 2(2), (5) and (6) of Act 360 which are mandatory, as non-mandatory requirements for the making of a valid will. Section 2(2) and (5), especially, of Act 360 provides as follows: His Lordship quoted the sections as above.

It is clear from the provisions quoted above that these provisions are mandatory. The word “shall” has been used therein. It is provided in s 27 of the Interpretation Act 1960 (CA 4) that: His Lordship quoted the section above.

In view of this provision in the Interpretation Act 1960 (CA 4) it would seem that the invitation to us to interpret “shall” used in section 2(2) and (5) of Act 360 as merely directive and not mandatory is misconceived. It is crystal clear that these provisions are mandatory and we cannot help holding that non-compliance with them would render a will invalid, especially s 2(5) of Act 360 which requires that the will shall be attested and signed by the witnesses. Having conceded that s 2(3) of Act 360, which requires the testator to sign the will in the presence of at least two witnesses, is a mandatory requirement, it is difficult to understand why the same counsel who made this concession should think that section 2(5) of the said Act 360 which requires these witnesses to attest and sign the will is not a mandatory requirement. We think that the trial judge was right in holding that non-compliance with section 2(2) of the Act made the appointment of the two executors void since the appointment was made after the main will was signed by the testator and as his signature after the appointing clause was not attested and signed by any witness. Again we are of the opinion that the trial judge was right in holding that non-compliance with section 2(5) of the said Act rendered the will invalid as it was not attested or signed by at least two witnesses.

Our courts have decided in several cases that any will made in this country after the commencement of our Wills Act 1971 (Act 360) must comply, in the appropriate cases, with the provisions in section 2 of the said Act. For example, Apaloo CJ, sitting as an Additional Judge in the High Court, Accra on 19 March 1984 in Akenten II v Osei [1984-86] 2 GLR 437 stated what should be proved by a plaintiff propounding a will. He held 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).” (Emphasis is mine.)

Also in re Essien alias Baidoo (dec’d), Essien v Adisah [1987-88] 1 GLR 539 where the validity of a will was in issue, this court (Court of Appeal) made some important pronouncements on section 2 of Act 360 which I consider necessary to quote. The court held, dismissing the appeal, in holding 1, 3 and 4 as follows:

 “(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 the Wills Act 1971 (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...

 (4) The court was enjoined to decide the case in accordance with the provisions of the Wills Act 1971 (Act 360) even though its decision would have the effect of defeating the purpose or intentions of the testator. Therefore although the courts 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 to pronounce against it, the extent of bequests and the number of beneficiaries notwithstanding.”

It is clear from the evidence in the instant appeal that only one witness attested and signed or subscribed the will contrary to the clear mandatory provision in section 2(5) of Act 360. It was contended by the appellant’s counsel that the requirement in this provision, section 2(5), that the will must be attested by witnesses was satisfied by the presence at the time of two witnesses including the deceased’s cousin, Yaw Mensah. It seems to me that the alleged presence of Yaw Mensah in the sitting room at the time the deceased prepared the alleged will would not in itself constitute an attestation of the deceased’s signature when it is clear from the evidence that the deceased never invited his said cousin to witness, that is, to attest and sign the alleged will. Section 2(5) of Act 360 specifically provides that “the witnesses shall attest and sign the will in the presence of the testator, ...” Did the said Yaw Mensah attest and sign the will? It is clear from the evidence that he did not do so. From the evidence adduced at the trial and considering the relevant authorities on the matter, many of which the trial judge considered in his judgment, the judge could not have been wrong in his conclusion that the document prepared by the deceased, exhibit A or 5, was not a valid will as it did not comply with the mandatory provisions of section 2(2), (3), (4) and (5) of the Wills Act 1971 (Act 360) governing the making of a valid will in this country.

In arguing the next ground of appeal, additional ground 1(d) quoted above, counsel for the appellant submitted that the trial judge was wrong in failing to regard exhibit A or 5, which is in the handwriting of the deceased, as satisfying the requirement of attestation by the fact that it was in the handwriting of the deceased. Counsel cited in support some Canadian and Scottish authorities. Counsel for the respondent rightly replied that there are statutory provisions in those countries for making such wills. But that in this country there is no such statutory authority. It seems to me that in Ghana only members of the Armed Forces engaged on active service can make such wills. In section 6(1) of our Wills Act 1971 (Act 360) it is provided as follows:

 “6(1) Notwithstanding any provision of this Act to the contrary, any member of the Armed Forces of whatever age may, while engaged on active service, make a will in any of the following forms:-

 (a) written and unattested, if the material provisions and signature are in the handwriting of the testator;

 (b) written (whether or not in the handwriting of the testator) and attested by one witness ...”

The evidence shows that these provisions did not apply to the deceased in this case. There is no doubt therefore that it was section 2 of the Wills Act which applied to him.

The last ground of appeal argued was additional ground 2 quoted earlier. Under this ground it was submitted that the trial judge erred in deciding the ownership of the second building, which the judge decided belonged to the deceased, because there was no such issue before the court. Counsel for the respondent replied that this issue arose from the pleadings and that evidence was adduced without objection by both the respondent and the appellant in respect of that issue. The trial judge was therefore right in determining the issue. We do not see any basis for the complaint as the parties, including the appellant, adduced evidence on the matter without any objection from any quarter.

On the whole we find nothing wrong with the decisions of the trial judge . We think that his judgment ought not to be disturbed. It was for the reasons given here that we dismissed the appeal.

(sgd) AMPIAH JA.

(sgd) SAPONG J.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner.