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JUDGMENT
By an amended writ of summons
the plaintiffs herein claim
jointly and severally against
the defendants:
‘(a) A
declaration that the Last Will
and Testament of the late Edward
Osei Boakye dated 10th
May 1997 is invalid, void and of
no effect, it not having been
executed in accordance and in
compliance with S. 2 (3) of the
Wills Act 1971 (Act 360)
(b) An order
revoking and setting aside the
grant of probate in respect of
the above Will to the Defendants
by the High Court Accra on 20th
November 2006.
(c) A
declaration that the estate of
the late Edward Osei Boakye
should fall into intestacy due
to the non-compliance with S. 2
(3) of the Wills Act 1971 (Act
360)
(d) An order
for accounts by the Defendants
their agents, assigns, servants,
or anybody from carrying out,
holding themselves in any manner
or form as executors or trustees
or trust body of the estate of
the late Edward Osei Boakye.
(f) Any
other relief(s) as to the court
seem meet’.
After the service of the writ
and its accompanying statement
of claim on the defendants an
appearance was entered and later
a statement of defence filed on
behalf of the defendants. The
plaintiffs filed a reply and
thereafter the following issues
set out in the application for
directions were adopted for
trial by the court. That is to
say:
(a)
‘Whether or not the last
Will and Testament of the Late
Edward Osei Boakye dated 10th
May 1997 was executed in
compliance with section 2 (3) of
the Wills Act, 1971 (Act 360)
and Wills Act, 1971(Act 360) in
general;
(b)
Whether or not a
different Will of the late
Edward Osei Boakye was admitted
to probate and thus voids the
probate granted,
(c)
Whether or not the grant
of probate is conclusive as to
the due and proper execution of
a Will
(d)
Whether the Plaintiffs
are estopped from challenging
the Will.
(e)
Whether or not the 1st
Plaintiff dealt with the 1st,
2nd and 3rd
Defendants as executors, and if
yes whether or not she is
estopped from bringing this
action;
(f)
Whether or not the Will
contains the signature or mark
of the two attesting witnesses
and
(g)
Whether or not the
attestation on the Will was
valid’.
At the trial the 1st
plaintiff gave evidence on her
own behalf and on behalf of all
the other plaintiffs. A
representative of the
defendants, that is the 1st
defendant, testified for and on
behalf of the 1st to
3rd defendants and
thereafter three witnesses were
made to give evidence for the
defendants. Again a
representative of the 4th
defendant testified for and on
behalf of the 4th
defendant.
In the humble opinion of the
court two issues are germane to
the determination of this case.
The first is whether or not the
Last Will and Testament of the
late Edward Osei Boakye dated
the 10th day of May,
1997 was executed in compliance
with section 2(3) of the Wills
Act, 1971 (Act 360) in
particular and the Wills Act in
general. The second issue is
whether or not the Last Will and
Testament of Edward Osei Boakye
(deceased) dated the 10th
May, 1997 has been admitted to
probate by the court.
In respect of the first issue
just stated, the plaintiffs have
raised various questions which
ought to be determined. At
paragraphs 5 and 6 of their
statement of claim the
plaintiffs have pleaded that:
‘5. The plaintiffs aver
that after the reading they
procured a copy of the said Will
of Edward Osei Boakye only to
find a grave defect, the said
will and Testament was never
witnessed to by the named
attesting witnesses
6. The Plaintiffs will
contend that in the said Will of
the late Edward Osei Boakye the
names of George Kwasi Darkwah, a
law clerk of Fugar & Co. Accra
and Lawrence Otoo, a Legal
Practitioner also of Fugar & Co.
Accra had been indicated as the
Attesting Witnesses yet there
was no mark or signature of
these witnesses to indicate
they witnessed the Will and
that they did so in the presence
of each other and both of them
were present at the time of the
execution by the Testator, Late
Edward Osei Boakye as required
by law’.
The defendants have denied all
the allegations made by the
plaintiffs. The question
therefore arises whether the
Will in question was witnessed
by the named attesting
witnesses. There is also the
allegation which came up during
the trial that the names of the
attesting witnesses written on
the Will was written by one
person and that even if the
names were written by two
persons at all, the writing
thereof did not take place at
the same time and before each
other.
It ought to be placed on record
that the plaintiffs have neither
in their statement of claim nor
in their evidence before this
court challenged the
authenticity of the signature of
Edward Osei Boakye (deceased)
which appear on the Will dated
10th May, 1997.
Hence, the validity of the
signature of the testator was
never an issue for determination
by the court.
Mary Akyaa Boakye the 1st
plaintiff herein testified on
oath that the names of the
attesting witnesses was written
by one and the same person and
indeed when the second attesting
witness Mr. Larry Otoo gave
evidence, it was suggested to
him during cross examination
that he alone wrote the names of
all the attesting witnesses on
the Will. Although Mr. Otoo
denied that suggestion counsel
procured his writing on exhibit
‘V’ to afford the court the
clearest opportunity to compare
the handwriting of Mr. Larry
Otoo with that which appears on
the Will of 10th May,
1997. Again the 1st
attesting witness was made to
write on a paper tendered as
exhibit ‘W’ to afford the
opportunity for comparison of
the handwritings.
I find that in writing the name
‘Lawrence’ on both the Will and
on exhibit ‘V’ the letter ‘w’
that appeared in the name
hanged unlike the other
alphabets. This cannot be said
of the alphabet ‘w’ appearing in
the ‘Lawrence’ written on
exhibit ‘W’. That is to say,
the ‘w’ in the name ‘Lawrence’
on the Will exhibit ‘S’ is
similar to the one on exhibit
‘V’ but dissimilar to the one on
exhibit ‘W’.
Again the writing of the name
‘Otoo’ on exhibit ‘S’ the Will
is similar to the one on exhibit
‘V’ in that the writing of the
starting alphabet ‘O’ flows into
the alphabet ‘T’ which also
links up with the two Os which
ends the spelling of the name
both of which are co-joined.
However, this observation cannot
be made about the name ‘Otoo’
appearing on exhibit ‘W’.
Again the figures ‘6274’ written
on exhibit ‘V’ is similar in
style to the same figures on
exhibit ‘S’ – the Will which
appears under the name of
Lawrence Otoo. The same cannot
be said, in the view of the
court, about the same figures
written on exhibit ‘W’.
Instead, the figures ‘6274’
written on exhibit ‘W’ is the
same in style with the figures
written on exhibit ‘S’ the Will
and appearing under the name
George Kwesi Darkwah.
I also find a similarity in
style in the writing of the
alphabet ‘R’ by the author of
the writings under witness
number one on the Will with the
writing of the same alphabet on
exhibit ‘W’.
In general and after a critical
scrutiny of the writings on the
Will and on exhibit ‘V’ and ‘W’
I find that the person who wrote
attesting witness one is not the
same as the person who wrote
attesting witness two.
The evidence of Mr. John Albert
Owusu a documents examiner and a
handwriting specialist who
testified as DW 3 is to the
effect that the person who wrote
as attesting witness one is the
same person who wrote exhibit
‘W’ and that the person who also
wrote as attesting witness two
is the same person who wrote
exhibit ‘V’. In general the
court agrees with the testimony
of Mr. John Albert Owusu.
The court agrees with the
submission of counsel for the
plaintiff when he cited the case
of Kells and Another vs.
Adjei and Others [2001-2002] 1
GLR 617 where it was held by
the court that:
‘The law was quite settled that
where there was a dispute as to
the genuineness of a signature
the safe way to resolve that
dispute was to compare and
examine the disputed signature
with admitted genuine signatures
alongside the evidence of those
familiar with the usual
signature of the person whose
signature was in dispute. The
duty to decide whether the
signature in dispute was genuine
or not, was that of the judge
and not the experts’.
The court is therefore satisfied
from its own observation and
assessment of the writings
placed before it that Mr. George
Kwesi Darkwah is the author of
the writings under witness
number one on the Will in
question and that Mr. Lawrence
Otoo is also the author of the
writings under witness number
two on the Will exhibit ‘S’
herein.
The next question is whether the
two writings under the attesting
witnesses column in the Will
dated 10th May, 1997
can pass, in law, as attestation
witnesses. One of the major
complaints of the plaintiffs
against the Will is that the
said Will was not signed by the
attesting witnesses. The first
plaintiff stated on this issue
in her evidence in chief that:
“the alleged witnesses to the
Will failed to append their
signatures to the Will. The
witnesses wrote their names on
the Will instead of signing.
There was no portion on the Will
for the witnesses to append
their signatures”. DW1 Mr.
Lawrence Nsakoh Otoo the second
attesting witness admitted the
allegation by the plaintiff that
he only wrote his name on the
Will but did not sign it.
According to DW1 his failure to
append a signature to the Will
was because “there was no
provision in the Will for
signature. There was only
provision for name, address and
occupation so I just accordingly
filled in those portions.”
DW2 also corroborated the
evidence of the 1st
plaintiff and DW1 on the issue
of writing only his name on the
said Will.
The evidence of DW1 and DW2
however is that when the
testator brought the Will to
their office, he signed the Will
in the presence of DW1 and DW2.
Thereafter DW2 wrote his name
and address on the first columns
provided for the first witness
and then DW1 also wrote his name
and address on the columns
provided for witness number two.
Section 2(3) of the Wills Act,
1971 (Act 360) provides in plain
language that:
‘2. Execution of a will
(3) The signature of the
testator shall be made or
acknowledged by the testator in
the presence of two or more
witnesses present at the same
time’.
The plaintiffs say that the
execution of the Will was not
made in accordance and in
compliance with section 2(3) of
the Wills Act, 1971 which I have
quoted above. I have already
pointed out that the plaintiffs
have not challenged or disputed
the authenticity of the
signature of the testator. The
implication of the complaint of
the plaintiffs is therefore that
Edward Osei Boakye executed the
Will dated 10th May,
1997 but that the testator did
not do it in the presence of the
alleged witnesses.
In my view since this allegation
has been denied by the
defendants the onus rest with
the plaintiffs to lead cogent
evidence to prove the allegation
in accordance with sections 14
and 17 of the Evidence Act 1975,
(NRCD 323) which provides that:
‘14. Allocation of burden of
persuasion
Except as otherwise provided by
law, unless it is shifted a
party has the burden of
persuasion as to each fact the
existence or non-existence of
which is essential to the claim
or defence that party is
asserting.
17. Allocation of burden of
producing evidence
Except as otherwise provided by
law,
(a) the burden of
producing evidence of a
particular fact is on the party
against whom a finding on that
fact would be required in the
absence of further proof;
(b) the burden of
producing evidence of a
particular fact is initially on
the party with the burden of
persuasion as to that fact’.
In this endeavour the 1st
plaintiff testified that
although it is stated on the
said Will that it was prepared
at Afriyie Chambers at Kumasi
yet a check or a search
conducted at the said chambers
revealed that no copy of the
Will was available at Afriyie
chambers to be given to the
plaintiffs. I must point out
that the evidence given by the
plaintiffs about the
unavailability of a copy of the
Will at Afriyie Chambers does
not in any way prove by a
scintilla that the said Will was
not executed in the presence of
DW1 and DW2.
All that section 2(3) of the
Wills Act requires is that the
execution of the Will by the
testator must be done in the
presence of at least two
persons. On the other hand if
the testator signed his Will not
in the presence of a minimum of
two persons, the testator can
still validate the Will by
acknowledging his signature in
the presence of at least two
persons. This may for example
demand that the testator write
his signature, even on a piece
of paper, in the presence of at
least two persons who must
attest to the fact of
acknowledgement in their
presence on the Will. Thus,
as far as the execution of the
Will by the testator was
concerned what was required by
law and which is most important
is that the signing of the
testator’s signature either on
the Will or the acknowledgement
of the testator’s signature must
be done in the presence of a
minimum of two persons present
at the same time.
Section 2(5) says ‘the
witnesses shall attest and sign
the Will ….’ In the
instant case the plaintiffs have
complained that the attesting
witnesses failed to sign their
names and that they only wrote
their names on the Will in
question. The Wills Act did not
define the phrase ‘attest and
sign’. The Black’s Law
Dictionary, 8th
Edition, edited by Bryan A.
Garner and published by Thompson
West; USA defines “attest”
as ‘to bear witness, to affirm
to be true or genuine; to
authenticate by signing as a
witness”. The same dictionary
defines ‘sign’ as
‘to identify (a record) by means
of a signature, mark or
other symbol with the
intent to authenticate it as an
act or agreement of the person
identifying it…” ‘Signature’ is
defined at section 46 of the
Interpretation Act 2009 (Act
792) to include ‘the making of a
mark and of thumb print”.
The Oxford Advanced Learner’s
Dictionary (7th
edition) says that to
‘sign’ as in signing
ones name is “to write your name
on a document, letter, to show
that you have written it, that
you agree with what it says, or
that it is genuine”.
As already noted the duty
imposed on the attesting
witnesses by section 2(5) of Act
360 is to “attest and sign the
Will in the presence of the
testator”. To ‘attest’ is to
bear witness. Thus, the most
important consideration is the
intention behind the writing of
the names of the witnesses on
the said Will and given the
circumstances of this case I
find that the intention of DW1
and DW2 in writing their names
on the Will was to attest to the
Will of Edward Osei Boakye.
Evidence has been given that one
of the attesting witnesses – Mr.
Larry Otoo herein, who is a
legal practitioner, has a known
signature which he should have
used if indeed he attested to
the Will of the testator
herein. The 1st
plaintiff tendered documents
bearing the signature of Mr.
Larry Otoo who also testified
and explained that he could not
sign his name on the Will
because the Will had no column
for his signature. It is not
unreasonable to expect that once
a person has a known signature,
that signature would be used
during the attestation.
However, given the explanation
by DW1 and DW2 as to why they
could not append their known
signatures on the Will of 10th
May, 1997 I do not think it will
be in the supreme interest of
justice to invalidate the Will
for the reason that it bore not
the signatures of the attesting
witnesses as known. For it has
been held by the Court of Appeal
in the case of In re Mensah
(deceased); Barnieh vs. Mensah
and others (1978) GLR 225 @ 235
that:
‘The policy of the courts in
matters affecting testamentary
dispositions was to give effect
to the last wishes of the
deceased and to uphold them
unless there were overriding
legal obstacles in the way.
Thus in the area of execution
a liberal approach was taken to
the form of signature and
initials or a description or a
mark would pass muster’.
Another attack on the Will of 10th
May 1997 is that DW1 and DW2 did
not write their names on the
Will at the time that the two of
them were together. Indeed, the
burden placed on attesting
witnesses by section 2(5) of Act
360 is different from that which
is imposed on the testator when
signing the Will under section
2(3) of Act 360. The confusion
has always come about as a
result of reading, al beit
unconsciously, the phrase “present
at the same time” which
is in section 2(3) into section
2(5).
Thus one risks confusing
himself if he transplants or
exports the phrase “present at
the same time” from section 2(3)
into section 2(5).
Section 2(5) regulates the
attestation of the Will by the
persons who were present when
the testator was signing his
signature on the Will. It does
not regulate the signing of the
Will by the testator. At the
risk of sounding repetitive the
court wishes to point out that
the execution of the Will by the
testator is governed by section
2(3) of the Wills Act whiles the
attestation by the witnesses is
governed by section 2(5) of the
Wills Act.
Now section 2(5) of Act 360
provides that:
‘2. Execution of a will
(5) The witnesses shall attest
and sign the will in the
presence of the testator, but a
form of attestation is not
necessary’.
All that section 2(5) requires
is that each person who wishes
to attest that the testator in
fact signed the Will in the
presence of that person, must do
so in the presence of the
testator. Thus, the other
attesting witness(es) need not
be present when one attesting
witness is attesting and signing
the Will in his capacity as a
witness. It is only the
testator who is required by law
to be present.
Thus for instance, if there are
only two attesting witnesses
after the testator had signed
the Will in the presence of the
two of them, witness number one
could sign and attest to the
Will in the presence of the
testator but in the absence of
witness number two. So also
witness number two could sign
and attest to the Will in the
presence of the testator but in
the absence of witness number
one. This theatre is quite
different from the execution of
the Will by the testator. That
is to say that whiles the
presence of the two attesting
witnesses is a necessary
condition to the validity of the
Will in the case of the
execution of same by the
testator, the same is not a
requirement or a condition
precedent for the validity of
the Will in the case of the
attestation by the two
witnesses. This position of the
law was explained in In re
Okine (deceased); Dodoo and
Another vs. Okine and Others
[2003 – 2004] SCGLR 582
where the court stated that:
“… what was required under
section 2(3) of the Wills Act,
1971 (Act 360), was that the
testator’s signature be attested
by at least two persons. Even if
none of the attesting witnesses
was available to testify, the
will might be granted probate if
there was credible evidence,
including the attestation
clause, that the will had been
duly executed by a testator of
sound mind ….
There was also no law, as argued
by the counsel for the
Defendants, that the attesting
witnesses were required by law
to sign in the presence of each
other. The law as provided in
section 2(5) of the Wills Act,
1971 was that the attesting
witness must each sign in the
presence of the testator.
Therefore, after the testator
had signed or acknowledged his
signature to both witnesses
present together, one of them
might be away while the other
attesting witness signed in the
presence of the testator. It
was usual for the attestation
clause to state that the
witnesses signed in the presence
of the testator “in the presence
of each other”. That,
however, was not a legal
requirement!
In the opinion of the court the
most potent attack on the Will
is in respect of the attestation
by the two attesting witnesses.
The defendants’ representative
the Most Reverend Dr. Robert
Kwasi Aboagye Mensah gave
evidence to the effect that he
was informed by lawyer Annancy
that the attesting witnesses did
not write their names at the
same time. That is to say that
the within named attesting
witnesses wrote their names on
the Will at different times.
This testimony coming from an
appointed executor under the
said Will cannot just be glossed
over and the court has no reason
to reject it. Indeed this piece
of evidence by the Most Reverend
negates the evidence by DW1 and
DW2 that the late Edward Osei
Boakye executed the Will in
their presence when they were
together after which they also
attested.
In the opinion of the court
there is nothing wrong with the
attesting witnesses attesting at
different times provided each
attesting witness does so in the
presence of the testator. The
evidence on record shows that as
far as the execution and the
attestation of the Will was
concerned the testator Edward
Osei Boakye (deceased) went to
the offices of the attesting
witnesses only once. Therefore
assuming that the Will was
attested to by the witnesses but
at different times as stated by
the representative of the
defendants herein, the logical
implication is that one of the
attesting witnesses did not
attest to the Will in the
presence of the testator
implying also that the testator
did also not execute the said
Will in the presence of the
alleged witnesses when they were
present at the same time. Thus
in the execution and the
attestation of the Will the
testator and the witnesses acted
in complete breach of the
mandatory requirements contained
in sections 2(3) (5) of the
Wills Act 1971(Act 360).
That being the case the court
holds that the attestation of
the Will dated the 10th
day of May 1997 was not made in
accordance with the provisions
of the Wills Act. The said Will
is therefore declared invalid.
It is therefore set aside and
the estate of the said Edward
Osei Boakye shall fall into
intestacy.
The next question which I wish
to consider is whether or not
the Will of Edward Osei Boakye
dated the 10th May,
1997 has been admitted to
probate. The motion for the
grant of probate was moved on
the 20th November,
2006. In the said motion, it
was expressed that the Will for
which the application for
probate was being made was dated
27th day of February
1998. Although the applicants
did not state the date of the
Will in their affidavit in
support, the affidavit of
witness in proof of due
execution of the Will which is a
requirement under Order 66 rule
25 of the High Court Rules of
Procedure CI. 47 stated that the
Will for which probate was being
sought was dated the 27th
February, 1998. The importance
of the affidavit of witness in
proof of due execution of the
Will cannot be swept under the
carpet or treated lightly. For,
it is an oath which is required
by law to be taken and
subscribed to before a person
authorized in law to administer
oaths and therefore every
deposition in the said affidavit
is very significant and cannot
be glossed over especially so
where the Will is challenged as
to its due execution such as the
dispute in the instant case.
Indeed DW1 Mr. Larry Otoo on the
16th November, 2006
deposed to the said affidavit
and stated among others that:
‘In the matter of Edward Osei
Boakye deceased
I, LAWRENCE OTOO of Accra
make oath and say that I am one
of the subscribing
witnesses to the last will (or
codicil, as the case may be) of
Edward Osei Boakye late of Accra
deceased, the said will (or
codicil) being now hereto
annexed bearing date 27-02-98
and that the testator
executed the said will (or
codicil) on the day of the date
thereof, by signing his name
at the foot or end thereof (or
in the testimonium clause
thereof, or in the attestation
clause thereto as the case may
be) and the same now appears
thereon, In the presence of me
and of George Kwasi Darkwa the
other subscribed witness thereto
both of us being present at the
same time, and we thereupon
attested and subscribed the said
will (or codicil) in the
presence of the testator
Sworn at Accra this 16th
day of November 2006’
It is therefore clear that the
Will, for which probate was
applied for and granted by the
court on the 20th
November, 2006 is alleged to be
dated 27th February,
1998. I am not
unaware of the contention by the
defendants that the date of 27th
February, 1998
indicated in the application and
the affidavit was the date on
which the Will was
deposited. However, once the
date 27th February,
1998 do not only appear on the
application as the date of the
Will but appears also in the
affidavit sworn before
the
commissioner for oaths as the
date on which the Will was made
and signed, it implies
that that date cannot
be treated as ordinary and
excused as having been stated by
mistake. In the view of the
court it is very
fatal to the probate. This is
so because no
Will dated 27th
February, 1998 and made by
Edward Osei Boakye has been
shown to
exist and hence the court could
not have rightly granted probate
to a Will of Edward
Osei Boakye dated 27th
February, 1998. The plaintiff’s
claim therefore for ‘an order
revoking and setting aside the
grant of probate in respect of
the above Will to the
Defendants by the High Court
Accra on 20th
November 2006 succeeds. I will
therefore
revoke and set aside the probate
granted by the court on the 20th
November, 2006.
Consequently I will order the
defendants to file an account
within 21 days from today in
respect of the estate of the
late Edward Osei Boakye from the
20th November, 2006
to
the date of this judgment. I
will consequently restrain the
defendants, their agents,
assigns, servants and all others
claiming or acting through them
from carrying out the
duties of executors or trustees
or trust body of the estate of
the deceased Edward Osei
Boakye. This being an estate
matter there will be no order as
to costs.
[SIGNED]
JUSTICE SAMUEL K. A. ASIEDU
JUSTICE OF THE HIGH COURT
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