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The judgment I am about to
deliver is in connection with
the estate of one Jonathan
Ebenezer Ayittey who died on
09-05-1979. The 1st,
2nd and 3rd
plaintiffs, namely Ruth Ayittey,
Susuana Ayittey and Lawrencia
Ayittey, who are children of the
deceased, brought this action
for themselves and on behalf of
the other children of the
deceased. The 4th
plaintiff, Edward Awire Quaye,
is the nephew of the deceased.
The plaintiffs mounted the
action against the
Administrator-General who is
named as the sole executor of a
Will in dispute which was
allegedly executed on
24-10-1978 and probate
of which was granted by this
court on 30-06-1980.
The plaintiffs issued the writ
in April, 1981,
against the
Administrator-General.
Subsequently, Elizabeth Wilson,
who claims to be a wife of the
deceased, and Kwame Johnson, who
claims to be a son of the
deceased, joined the suit as the
1st and 2nd
co-defendants, respectively.
In this action, the plaintiffs
claim the following reliefs:
1.
Revocation of the probate
granted to the
Administrator-General (the
defendant) on 30-06-1980.
2.
That the court shall pronounce
against the validity of the said
Will and declare it null and
void.
3.
A grant to them of Letters of
Administration to the estate of
the deceased.
4.
Some such other order as may be
just.
The case of the plaintiffs is
that the so-called Will of the
late Jonathan Ebenezer Ayittey
was not duly executed in
accordance with the Wills Act,
1971 (Act 360). The plaintiff
contend that, at the time the
said Will was purportedly
executed, the alleged testator
was not of sound mind, memory or
understanding and did not know
and approve of the contents
thereof.
The plaintiffs allege that, on
10-10-1978, the alleged testator
was admitted to the male ward of
the Ridge Hospital, Accra, in a
very poor health. The diagnosis
of the physician specialist who
attended to him disclosed that
he was suffering from cerebral
sclerosis – a disease of the
brain or mind which rendered him
incapable of conducting or
controlling his affairs and
communicating intelligently and
meaningfully with anyone.
The plaintiffs aver further that
the deceased’s condition
continued to deteriorate from
10-10-1978 until he was
discharged from the hospital on
31-10-1978 at the request of the
head of family to be taken to
Obrachire, in the Central
Region, for herbal treatment.
The plaintiffs visited the
deceased on 23-10-1978 at the
Ridge hospital and saw that his
condition had not improved for
he was very drowsy, with pain in
his waist and suffering from
severe diarrhea; and he was
unable to communicate with them.
This condition persisted until
24-10-1978 when the plaintiffs,
again, saw the deceased.
The plaintiffs contend that the
deceased was transferred from
the general male ward to the
V.I.P. ward on 20-10-1978 at the
instance of the 2nd
co-defendant for the sole
purpose of exerting undue
pressure and influence on him to
execute the purported Will under
which the 2nd
co-defendant, who is not a son
of the deceased, and the 1st
co-defendant, who is a concubine
of the deceased, and her
children are beneficiaries with
large portions of the estate.
The plaintiffs contend in the
alternative that the
co-defendants forged the said
Will and that the contents of
the Will do not represent the
wishes of the deceased who could
not have understood and
acknowledged the import of the
purported Will. The plaintiffs
say that a comparison of the
signatures of the deceased on
tenancy agreements signed by him
and on an application made by
the deceased for a building
permit with what is on the
purported Will would show
clearly that the signature on
the latter document was forged.
The plaintiffs, again, aver that
the deceased lived with them in
the same house up to the time of
his death and during his
lifetime the plaintiffs and
their siblings were fondly loved
by their father. The 2nd
co-defendant used to visit the
deceased and was on very good
terms with the 1st
co-defendant who was on bad
terms with the plaintiffs and
their siblings. It is thus not
surprising that the plaintiffs
and their siblings were left out
of the purported Will which is
the brainchild or the handiwork
of the 2nd
co-defendant.
It is thus the case of the
plaintiffs that the deceased
died intestate and they have an
interest in his estate. Thus,
their action.
The case of the defendant is
that the deceased did not die
intestate for he made a real and
genuine Will which was executed
in accordance with the
provisions of the Wills Act,
1971 (Act 360). At the time the
Will was executed, the deceased
was of sound mind, memory and
understanding and he knew and
approved of the contents
therein. He, therefore, properly
obtained probate of the said
Will and the plaintiffs,
therefore, have no interest or
entitlement to a share in the
estate of the deceased.
The 2nd co-defendant
associates himself with the case
of the defendant. He avers,
further, that the deceased was
admitted at the Ridge hospital
for the treatment of a stroke
and not cerebral sclerosis. He
states that the deceased was
sent to Obrachire before he was
admitted at the Ridge hospital.
The deceased improved
considerably in health while on
admission and was eventually
discharged and made an
out-patient.
The 2nd co-defendant,
again, avers that after the
deceased was discharged from the
hospital, members of his family
took him to a village on the
Winneba-Swedru road under the
pretext of healing him. After
sometime, however, the deceased
had a relapse and eventually
died at the village.
The 2nd co-defendant
denies exerting any pressure on
the deceased to execute the said
Will. He also denies forging the
said Will. He says he is the
first son of the deceased by one
Madam Hannah Nartey and that he
used to visit the deceased,
occasionally. He says, further,
that the plaintiffs and their
siblings maltreated and despised
the deceased during his lifetime
so it is not surprising that the
deceased disinherited them.
At the directions stage, a
number of issues were set down
for trial. However, the most
relevant for the determination
of this case are the following:
(a)
Whether or not the Will of the
late Jonathan Ebenezer Ayittey
dated 24-10-1978 was duly
executed in accordance with the
provisions of the Wills Act,
1971 (Act 360).
(b)
Whether or not at the time the
alleged Will was executed the
deceased was of sound mind,
memory and understanding.
(c)
Whether or not at the time the
alleged Will was executed the
deceased did not know and
approve of the contents thereof.
(d)
Whether or not the plaintiffs
are entitled to their reliefs.
I would deal with these issues
in the order in which they have
been stated above.
(a) Whether or not the
Will of the late Jonathan
Ebenezer Ayittey dated
24-10-1978 was duly executed in
accordance with the provisions
of the Wills Act, 1971 (Act
360).
By section 1 of the Wills Act,
1971 (Act 360), any person of or
above the age of eighteen years
may in writing and in accordance
with the provisions of the Wills
Act, make a Will disposing of
his personal property. However,
a person suffering from insanity
or infirmity of mind so as to be
incapable of understanding the
nature or effect of a Will does
not have capacity to make a Will
during the continuance of that
insanity or infirmity of mind.
Furthermore, a Will obtained by
fraud or made under duress or
undue influence is void.
Section 2 of Act 360 makes
provision for how a Will is
executed. It provides that a
Will is not valid unless it is
in writing and signed by the
testator or by any other person
at the direction of the
testator. The signature of the
testator shall be made or
acknowledged by the testator in
the presence of two or more
witnesses who are present at the
same time. The witnesses shall
attest and sign the Will in the
presence of the testator. Where
the testator is blind or
illiterate, a competent person
shall carefully read over and
explain the contents of the Will
before it is executed.
In the instant case, the
plaintiffs challenged the
validity of the Will of the late
Jonathan Ebenezer Ayittey on
three main grounds namely:
1.
Infirmity of mind; or
2.
Undue influence; or
3.
Forgery.
The onus thus shifted on the
defendants to prove the Will in
solemn form. To prove the due
execution of the Will, the
defendants gave evidence mainly
through one Nathaniel Acquaye,
one of the two witnesses to the
Will. This witness gave evidence
that he was working with the
Bank for Housing and
Construction when Mr. Afutu
Kotey, the lawyer who prepared
the Will, asked him to witness a
Will. He, therefore, invited him
and one Ohene Yeboah and took
them to the Ridge Hospital where
they met the late Jonathan
Ebenezer Ayittey and the lawyer
introduced him to them as the
testator whose will he wanted
them to witness. The testator,
who was then sitting on a chair,
read the Will and appended his
signature and he (Nathaniel
Acquaye) and Ohene Yeboah signed
in the presence of the testator.
The witness was cross-examined
extensively by counsel for the
plaintiffs and he maintained his
stand that the testator read the
Will, signed it in his presence
and the presence of Ohene Yeboah
and the two of them also signed
as witnesses. I have no doubt in
my mind that he is a witness of
truth.
The 2nd co-defendant
also gave reliable evidence
denying that he influenced the
execution of the Will or forged
it. There is no dispute that the
testator was a literate. The
Will (Exhibit C) complies with
section 2 of Act 360. In other
words, the late Jonathan
Ebenezer duly executed a Will in
accordance with law.
As indicated earlier, the
plaintiffs challenged the Will
on grounds of infirmity of mind
and undue influence. Apart from
their assertion, which has been
challenged by the defendants,
the plaintiffs failed to lead
any credible evidence to prove
same. If the testator was
suffering from infirmity of
mind, a medical report could
have put the evidence of the
plaintiffs beyond doubt. No
medical evidence was called at
all.
Furthermore, the plaintiffs aver
in their statement of claim that
the signature in the Will is not
that of the testator and that
they have documents in which the
genuine signatures of the
testator are to prove this
assertion. In their evidence,
the plaintiffs never produced a
single document to prove this
assertion.
It can be inferred from the
evidence of the plaintiffs that
they are challenging the
validity of the Will because its
provisions are not favourable to
them; and not that it is not the
valid Will of the testator. It
is their case that the 1st
co-defendant is not a wife of
the deceased to whom various
properties were bequeathed to
her. Similarly, the 2nd
co-defendant is not the son of
the deceased to whom various
properties were bequeathed to
him.
The plaintiffs could be angry
about the bequeaths to the 1st
and 2nd co-defendants
but that is of no consequence.
The purpose of a Will is to give
any person or institution
properties of the testator as
the latter wishes. Nobody can
question the bequeaths, however
unhappy the person is.
So, the plaintiffs have failed
to prove that the Will of the
late Jonathan Ebenezer Ayittey
was forged for they have not
been able to prove that. On the
contrary, the defendants have
proved that the Will was duly
executed.
The other issues follow suit,
that is to say that the testator
was of sound mind, memory and
understanding, and know and
approve of the contents of the
Will before appending his
signature.
The plaintiffs are, therefore,
not entitled to their claims.
The Will in issue is valid for
all purposes and should be
executed in accordance with its
provisions.
The plaintiffs’ case is hereby
dismissed.
COUNSEL:
1. Mr. Jaine for D. O. Lamptey
for the Plaintiffs.
2. Mr. Andrew Daniels for the 2nd
Co-Defendant.
3. No representation for the
Defendant and 1st
Co-Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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