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JUDGMENT
T.K. ADZOE, J.S.C.:
Isaac Ottie alias Agya Atta died on 10th August, 1982.
He hailed from Kenkase, Kwabre No. 3 in Ashanti. He left
behind a Will dated 26th January, 1982. In the Will he
devised houses and farms to his wife, children and other
persons. Among the devisees was one Kwadwo Kwako, the
appellant herein. The testator in clause 7 of will
devised six rooms in House No. 54 Block 12 to the
appellant. Then in clause 13 of the will the testator
declared that:
"Kwadwo Kwako is to inherit me on my death and all the
properties which I have not devised must go to him"
The Plaintiff/Respondent hereinafter referred to simply
as the respondent did not receive any gift under the
will. On 7th February, 1991 the respondent describing
himself as "one of the principal members of the Bretuo
Family or clan of Kenkase-Ashanti and a beneficiary
under the late Isaac Ottie's said Will and who claims to
be interested in the Residuary Estate of the said Isaac
Ottie" (deceased) took out an originating summons at the
High Court in Kumasi asking for an interpretation of
clause 13 of the Will, quoted above. In his opinion the
devise to the appellant in clause 13 of the Will was
made to him in his capacity as customary successor and
therefore the appellant must be deemed to take such
properties in trust for his immediate family. The
question he posed for determination as follows:—
"Whether or not having regard to the devises in the last
will of Isaac Ottie, alias Agya Atta (decd) dated 26th
January, 1982, more particularly the devises made in
clauses 7 and 13 of the said Will the late Testator
Isaac Ottie by clause 13 of the said will devised his
Residual Estate to Kwadwo Kwako personally forever or
the devise was made to Kwadwo Kwako in his capacity as
the customary successor who is to hold the properties in
trust for his immediate family".
The respondent contended that the deceased made the
devise in clause 13 to the appellant in his capacity as
the deceased's customary successor because the deceased
knew that the appellant would be his customary
successor. The Respondent alleged that before the
deceased died he pleaded with the elders of the Bretuo
family that he wished the appellant to be his customary
successor and when the family discovered later on that
this wish was "repeated in the last Will of the
deceased" the family honoured it and accordingly
appointed the appellant as the testator's customary
successor. The appellant denied this. In an affidavit
filed on 4th March, 1991 in answer to the respondent's
claims, the appellant deposed in paragraphs 6 and 7 as
follows:—
(6) I deny that my late uncle Isaac Ottie before his
death pleaded with the elders of the Bretuo family that
he wished that I be made customary successor any time he
died.
(7) That my appointment as the customary successor was
not due to any request of my late uncle but by concensus
of the family after my late uncle's death".
Accordingly the appellant maintained that any properties
covered under the devise made in clause 13 were gifted
to him personally for his own benefit.
It
would appear that the confusion which arose in the minds
of the respondent and some members of the Bretuo family
was created by the word "inherit" in the controversial
clause 13. What did the testator mean when he said
"Kwadwo Kwako is to inherit me"?.
In
his search for a proper construction of clause 13, the
trial court decided to, and did indeed, call the lawyer
who prepared the Will, in his own words "to tell this
court what his instructions were in respect of clause
13". The lawyer's evidence was briefly this:
"My instructions were that Kwadwo Kwako who was to
inherit him was to take his residuary estate on
condition that he would take care of his wife. The
residuary estate was to go to the family if he failed to
look after his wife. The wife of Ottie died not long
afterwards".
Upon this evidence the trial High Court judge made the
following observations in his judgment:
"Having heard counsel for both sides, the court decided
to fall on the person who prepared the Will to find out
what the intent of the testator was when he (Testator)
gave him instructions. Fortunately, the Will was
prepared by a lawyer who was readily available . . . . .
. . . . . .
From the evidence of the Lawyer, Mr. Charles Kessie, it
became clear that the Testator intended that the
Residuary estate must go to Kwadwo Kwako in his personal
capacity.
The condition upon which the family was to have the
Residuary estate did therefore not materialise.
Consequently, I hold that the devise in clause 13 of the
will was to Kwadwo Kwako personally and he took the same
in his personal capacity".
The respondent immediately appealed to the Court of
Appeal on grounds that:
(a) The judgment cannot be supported having regard to
the contents of the Deceased's Will.
(b) The trial judge erred in law by receiving extrinsic
evidence and using the same to ground her judgment.
When the appeal came up for hearing the respondent
argued one additional ground which was that "(1) the
interpretation given by the learned High Court Judge
sins against the spirit and letter of the section 1 of
the Wills Act, 1971. Act 360". Counsel argued that by
clause 13 the Testator clearly showed an intention to
appoint the appellant as his customary successor, and
that the residuary estate was to go to the appellant in
his capacity as customary successor "because the
testator gave all his properties to children, wives
etc.; and if the appellant had not become customary
successor it would not be proper for the residuary
estate to go to him as stated in the Will".
Two of the three judges of the Court of Appeal allowed
the appeal and one disagreed, saying, "There is nothing
in the Will of Ottie, which indicates that Kwadwo Kwako
was to take the residuary estate other than in his own
personal capacity". The majority decision was based on
the argument that the deceased testator had, during his
life time, requested that the appellant should be his
customary successor and because the family acceded and
appointed him as such successor the appellant was "bound
in law and custom to hold and administer the estate in
trust for the family and nothing more". They made an
order directing the appellant to take the residuary
estate in trust for the family, and "to administer and
manage it for and on behalf of the family". This is why
the appellant has also appealed to this court. His
grounds of appeal are:
1. That the judgment of the Court of Appeal is wrong in
law.
2.
That the majority decision that the 3rd
defendant/respondent/appellant took those properties as
customary successor is wrong in law.
3.
That the majority of two judges who decided that there
was ambiguity in paragraph 13 of the Will of the
testator have erred in law.
We
are to settle finally what should be the proper
construction of clause 13 of the will. My Lords, I agree
with the learned judges of the Court of Appeal that the
trial judge erred in taking evidence from the lawyer who
prepared the Will.
My
understanding is that a Will is a very special and
solemn legal document in which a person declares his
wishes as to how his property should be distributed,
disposed of or managed after his death; and the greatest
respect due to a deceased person is, in my opinion, to
give effect to his "last Will and testament" unless
there are compelling reasons militating against doing
so. Annan J, as he then was, hit the mark when he said
that " policy of the court is to give effect to the last
wishes of the deceased and to uphold them unless there
are overriding legal obstacles in the way” – vide,
Mensah (decd): Barnich v. Mensah (1978) 1 GLR 226. In
accordance with this basic principle, when the courts
set out to construe a Will what they do is to look for
the intention of the testator as expressed by him in the
actual words used by him, having regard to all the other
provisions in the will. The intention which the will
itself declares either expressly or by necessary
implication is what the courts would act upon. The rule
which enjoins the courts to rely on the language of the
testator is normally called the golden rule. There are
other rules, indeed many rules, of construction which
the courts often rely on for guidance. These several
rules have a common aim namely, to direct the court
towards an objective standard of construction and to
exclude evidence which seeks to provide what is supposed
to be the actual intention of the testator.
The rule is generally stated as being this, that
extrinsic evidence of a testator's declarations of
intention as to the meaning to be put on the language
used in his will is not admissible as direct evidence of
his testamentary intention. Under this rule evidence of
instructions given by the testator for his Will and of
any declarations made by him as to what he intended to
do by the Will is not admissible as direct evidence of
his testamentary intention. Thus in the case of Doe D.
Hiscocks v. Hiscocks (1839) 5 M & W 363 it was held that
evidence of the testator's instructions for his Will and
of his declarations after its execution which suggested
that he meant the gift for "Simon" and not "John" was
not admissible. But instructions given for the Will are
admissible in two situations accepted as exceptions to
the general rule. Such instructions may be admissible in
cases of equivocation, and as circumstantial evidence
under the arm-chair principle. An equivocation,
sometimes also called a latent ambiguity, arises if the
name or description of the devisee or the property
mentioned in the will turns out to fit two or more
persons or things and applies unambiguously to all of
them; and under the arm-chair principle the instructions
are admissible as contemporaneous evidence that is
explanatory of the meaning which the testator attributed
to a word or a name. In either case the instructions are
not admitted for the purpose of gathering what the
testator intended to do, but strictly for the purpose of
identifying the person or object he is reasonably deemed
to have had in mind. The point is illustrated in In re
Ofner: Samuel v. Ofner (1909) 1 Ch. 60. In that case the
testator appointed one Dr. Alfred Ofner as one of his
executors and gave him a legacy of 2001. Among other
legacies he also gave "to my grandnephew Robert Ofner"
1001". The Court of Appeal held that a document was
admissible, not as evidence of intention, but as
evidence to assist the court to find out who the
"grandnephew" was whom the testator had wrongfully
described as "Robert". With the aid of the document the
court was able to conclude that it was "Richard" who was
mistakenly referred to as "Robert" because there was no
"Robert" and Dr Alfred Ofner indeed had a brother called
Richard whom the testator was certainly referring to,
but erroneously thought he was called Robert. As Farwell
L.J. put it in his judgment "... any evidence is
admissible which, in its nature and effect, simply
explains what the testator has written, and no evidence
can be admissible for the purpose of showing what he
really intended". In the instant case the provision in
clause 13 does not require any extrinsic evidence to
assist the court in construing it. The language of
clause 13 is fairly straightforward and portrays no
hidden intentions.
Looking at the grounds of appeal filed by the appellant,
it is my view that they all centre on only one and the
same theme, namely, that the majority decision that the
appellant herein should take properties under clause 13
as customary successor is wrong. What the majority are
saying is that if any properties come to the appellant
under clause 13, they belong to the testator's immediate
family and the appellant will hold them as a trustee or
caretaker for and on behalf of the said family.
The problem with clause 13 is caused by the verb
"inherit". What is the import of the verb "inherit" in
the context of this Will? The testator was a Ghanaian
and an Ashanti. But this Will was prepared by a lawyer
who must be deemed to have chosen his words with
professional insight. The words he chose upon his
instructions are "to inherit me"; he did not say "to be
my customary successor". There must be reason for this.
To "inherit", when used in relation to succession to
property has as its primary meaning the signification of
taking over the property of the deceased owner. Its
import is that the inheritor is to acquire the right and
privilege to enjoy any interest which the deceased owner
had in the property. This meaning does not attach to the
position of a customary successor in the customary law
system of inheritance. Whenever the self-acquired
property of a deceased intestate is said to become
family property it is the immediate family of the
deceased which takes the property. Kwabena
Bentsi-Enchill calls that family the "inheriting group":
See Ghana Land Law: page 158. Ollenu puts it this way:
"it cannot be overemphasized that it is the family and
not an individual who inherits and becomes owner of the
self-acquired property of a deceased member of the
family". Vide, the law of Testater and Intestate
Succession in Ghana, page 229.
What this means is that the family acquires title of
ownership to the property. But the family as owner
always, and invariably, appointed a member of the family
called the "successor" to administer the property for
and on behalf of the family. This successor, stricto
sensu, does not have title. He is variously described as
a trustee or caretaker of the family with powers to
control and manage the property.
See Ahorklui v. Ahorklui: reported in Ollenu, P.C.L.L.G.
page 212; Khoury & Ors. v. Tamakloe (1950) DC. (Land)
1948-51. The successor at customary law is not
necessarily linked up with the property of the deceased.
A person may die a pauper and still have a successor.
This is because the rationale behind the concept of
customary successor transcends the administration of the
deceased's property. SKB Asante, in his learned treatise
on property law in this country observed that:
"Aside from his powers and obligations in respect of the
deceased's estate, a successor represents the person of
his predecessor in a very real sense; indeed he may be
described as the extension of the decedent's legal
persona. Thus the decedent's children become the
children of the successor; so does the predecessor's
wife, in the technical sense at least. A successor may
cohabit with the predecessor's wife if the wife so
desires, but in any case, he is under an obligation to
maintain and support her while she remains unmarried.
Where his means permit, a successor is expected to
honour the personal and moral commitments of his
predecessor" vide: Property Law and social goals in
Ghana 1844 - 1966, by S.K.B. Asante, pages 156 - 157.
The legal position therefore is that a customary
successor is appointed even if there is no property left
behind by the deceased intestate. The corollary of this
is that a customary successor will not administer and
manage any property on behalf of the family if the
deceased does not leave behind any property for his
immediate family. It follows therefore that if even we
accept the view that the testator in this case did
recommend the appellant as his successor and the family
obliged after his death, it does not follow as a matter
of course that the appellant was intended to take under
clause 13 as a trustee or caretaker of the family unless
it is evident that the testator intended to give
property under the said clause 13 to the family.
Until the Wills Act, 1971 (Act 360) came into force on
the 1st day of June, 1971, the making of statutory Wills
in this country was governed by the English Wills Act of
1837 which was part of the common law of Ghana as a
statute of general application. It did not impose any
limitation on testamentary freedom. The tradition has
not been changed by Act 360. A testator can therefore
dispose of all his property to whomsoever he chooses.
The only restriction imposed by Act 360 is the provision
in section 13 of the Act which gives certain dependents
of the deceased - parents, spouse, child under 18 years
- to claim a "reasonable provision" for their needs out
of the estate of the deceased, if the testator did not
make provision for them during his lifetime or by the
Will, and in the opinion of the High Court they are
likely to suffer hardship.
Indeed, there is no obligation on the testator to leave
anything for his family. That is the view I hold,
looking at the Wills Act (Act 360) and having regard to
the established right of testamentary freedom which a
testator has; and if a testator shows by his Will that
the family which under normal circumstances would have
had a claim on his intestacy shall not take under the
Will, we must give effect to his wish. We are not
entitled to indulge in any wishful presumption that a
particular person or group of persons is intended to be
provided for. The only guide is the language of the
Will. See Turker v. Harrison (1832) 5 Sim 538 at page
543 where the court said that there is no presumption
that anyone is to be beneficiary except those named or
described in the Will as such. In the instant case the
deceased's family is nowhere mentioned in the Will, but
the Court of Appeal in the majority judgment reasoned
that because the deceased suggested before his death
that the appellant should be his customary successor,
and because the family appointed the appellant as the
customary successor, clause 13 which says that the
appellant should "inherit" him must be construed to mean
that any devise to the appellant under the said clause
13 must go to the appellant in the fiduciary capacity as
caretaker of the family. I have already tried to show
the distinction between the "inheritor" and the
"successor" at customary law. The argument by the two
judges of the Court of Appeal that the deceased
nominated the appellant as his customary successor and
so the devise in clause 13 of the Will cannot be said to
be specifically made to him does not appear to me
acceptable. In the first place, the affidavit evidence
before the court does not establish the claim that the
testator asked that the appellant be made his successor.
The appellant denied that allegation. The principal
members of the Bretuo family, in what purports to be
their Power of Attorney to the Respondent did not
mention any request by the testator that the appellant
be made his customary successor. What they declared in
the said Power of Attorney is this: "We belong to the
immediate family of Isaac Ottie alias Agya Atta (decd).
Agya Atta died testate having made a Will dated 26/l/82.
When Agya Atta died our family met and appointed our
relative Kwadwo Kwako to inherit the deceased according
to customary law".
This declaration is not the same as the deposition made
by the respondent in his affidavit supporting his
summons. What he deposed to in paragraphs 6 and 7 of the
affidavit is this:
“6. Before his death the late Isaac Ottie pleaded orally
with the elders of our Bretuo family at Kenkase-Ashanti
that he wished Kwadwo Kwako would be made his customary
successor any time he died. This 'WISH' the family later
discovered had been repeated in the last will of the
deceased.
7.
Thus at a family gathering the family honoured the
wishes of the deceased Isaac Ottie and appointed Kwadwo
Kwako as the customary successor of the late Isaac
Ottie".
The discrepancy in the statements of the Principal
members of the family and the respondent is glaring and
leaves considerable doubt on the allegation that the
deceased wanted appellant to be his customary successor;
the doubt is deepened in the face of the denial made by
the appellant. Accordingly there was no evidence before
the trial court that the deceased wanted the appellant
to be his customary successor. That is not the same as
saying, as the majority of the Court of Appeal would
have it, that the testator could not appoint his
customary successor by his wWll. I concede that a person
cannot, as a general rule of customary law, appoint his
own successor. The authorities are many including Kwobah
v. Propaganda. Fide (1948) D.C. Land (1948-51) 22;
Frimpong v. Anane (1965) GLR 354. And see also Ollenu:
The Law of Testate and Intestate Succession in Ghana
(1966) page 95. Ollenu explained that the rule applied
because the property would become family property only
after the death of the member of family and because upon
his death he would no longer have any control over the
land, it is only reasonable that the family as owner
should be the right authority to appoint the person who
should administer the estate on its behalf. This means
that the customary law regarded any attempt by the owner
of property to appoint his own customary successor
during his life time as an encroachment upon the rights
of the family to appoint a successor who is the family's
caretaker and owes a fiduciary duty to the family. If
the rule is so understood then it appears to me that it
cannot be extended to the case where the owner of
self-acquired property makes a Will. The customary law
rule applies by operation of the customary law upon
intestacy. A Will is intended to avoid intestacy and the
automatic operation of the rules of the customary law.
And I think that where the owner of property makes a
Will his freedom of testamentary disposition must be
totally divorced from the customary law, especially in a
situation where he does not give any property to his
family. Therefore, where a person directed in his Will
that a certain property should pass to his family and be
administered by a named person as his successor, the
appointment was held to be valid. Vide Nelson v. Nelson
(1951) 13 WACA 248. In re Yena (1960) GLR 195 a Will
appointed a successor and the court did not disapprove
of it. In what was accepted as a Will, the deceased
disposed of his estate and appointed one Kwaku Baffu to
bury him, pay all his expenses and to succeed him
according to Fante custom. The High Court per
Adumuah-Bossman J. accepted Kwaku Baffu's position as
successor and permitted Kwaku Baffu's own customary
successor to act as the deceased's executor and take out
Letters of Administration. He made the following
revealing observations:
"In this case we have the most valuable evidence of
Effuah Fofie, mother-in-law of the testator, who
explained that the circumstances how he (the testator)
came to summons people together and directed the
document to be prepared to provide for his burial on his
death and the succession to his estate; ..."
It
appears to me that where a person is dealing with his
self-acquired property in a Will and does not intend to
leave anything for his family, he must be free to
appoint any other person to take control of his property
and direct him to act as his successor; the rule that a
man cannot appoint his own customary successor must be
confined to cases where the man during his lifetime was
in charge of family property, and should not be extended
to testamentary dispositions.
But this aside, it is my opinion that clause 13, as I
have already indicated, does not appoint the appellant
as his customary successor. He declared the appellant to
inherit him. Having left nothing for the family, the
person to inherit him in respect of any residuary
property should, according to him, be the appellant, and
in his capacity as inheritor, the appellant is to take
all properties not devised in the Will.
The provision is simple and clear. You may call it a
general disposition, or a residuary disposition.
Whichever it is, Act 360 takes care of it in sections
7(4) and 7(5).
Section 7(4) provides:
"A
general disposition of the movable or immovable property
of a testator shall include any property to which he may
have the power to appoint in any manner he may think
fit".
Section 7(5) says:
"A
general or residuary disposition shall operate to confer
a power to exercise a power of appointment, unless a
contrary intention appears from the will".
A
power of appointment without any limitation or
qualification is equivalent to ownership. Under a power
of appointment the devisee can appoint the property to
himself and so become absolute owner of it unless a
contrary intention appears from the Will. Section 13 of
the Will clearly professes to give the appellant
complete control over anything that falls into residue,
and so must be taken as intended to give the appellant
an absolute gift. As a general rule an absolute gift
cannot be cut down except by clear words and there are
no such words in clause 13 or any portion of the Will.
The contrary intention required in section 7(5) must be
expressed or implied in the Will. If the testator had
intended to grant his residuary estate to the Bretuo
family, he would have said so; and if he had wanted the
appellant to take any property on behalf of, or in trust
for, the Bretuo family, he would have said so. In the
absence of any such express or implied stipulation, it
is not warranted by the rules of construction to say
that clause 13 must be understood in the sense advocated
by the respondent. I think it is wrong for the Court of
Appeal to accept the respondent's contention. The
argument made by the Respondent and accepted by the
Court of Appeal that the testator made a specific devise
to the appellant in clause 7 and would have been equally
specific in clause 13 if he had wanted the appellant to
take absolutely has no impression on this case. The said
clause, as I have indicated, is effective to gift away
any property to the appellant. I do not know of any rule
of law which says that a testator cannot make separate
devises to the same person in different clauses in the
same Will. And there are no magic words which alone can
create an absolute interest. Since the devise in clause
7 does not in any way conflict with the devise in clause
13, I do not see any difficulty in giving effect to
both. It was rather for the testator to have made it
clear that he wanted the appellant to take the residuary
estate on behalf of the family. I hold that the Court of
Appeal erred in its conclusion on this point.
What is more, the Court of Appeal failed to consider the
Intestate Succession Law and its impact on succession in
Ghana today. If that court had adverted its mind to the
Law, PNDCL 111, it would have realised that the
respondent cannot succeed on his claim. The Intestate
Succession Law, 1985, PNDCL 111, has changed the face of
the law on succession under intestacy. The old law,
prior to PNDCL 111, was generally that upon the death
intestate of a Ghanaian his self-acquired property
became family property. The family appointed a
customary successor to administer the estate on behalf
of the family. The system under the customary law was
fraught with problem and anomalies and offered very
little protection to the nuclear family—i.e. husband,
wife and children. Law 111 was passed to reverse the
situation. The Law does not apply at all where the
deceased leaves behind a valid Will, except in cases
where the Will does not cover all his property, in which
event, the deceased is said to have died partially
intestate and Law 111 Will then apply to that part of
the property which is not disposed of in the Will — see
section 2 of Law 111.
What we must remember is that Law 111 itself provides
the scheme of distribution, giving priority to the
spouse and children over all other beneficiaries,
reserving for the wife and children household chattels
exclusively and also houses (if any) according to the
size of the estate and the number of the beneficiaries.
In that scheme of distribution only a small fraction
devolves in accordance with customary law. In a claim
like the instant one before us, therefore, I think that
it is necessary for the respondent to identify the
particular property he is claiming for the family
assuming that his claim that clause 13 of the Will does
not vest ownership of the alleged property in the
appellant is acceptable. This is because if that alleged
residuary property does not go to the appellant, it
would only fall into intestacy and liable to be
distributed under Law 111; it will not automatically
devolve on the family of the deceased. To that extent I
agree with the appellant that the judgment of the Court
of Appeal is wrong in law.
On
the whole the majority decision of the Court of Appeal
that the appellant is to take the residuary estate in
trust for the family is erroneous and not supported by
any evidence; and the order bearing on the appellant to
administer and manage it on behalf of the family cannot
be allowed to stand.
The appeal is accordingly allowed. The judgment of the
Court of Appeal is hereby set aside, and the judgment of
the High Court is restored.
BAMFORD-ADDO (MRS) J.S.C.:
I
agree.
J.
A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
AMPIAH, J.S.C.:
I
agree.
A.
K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I
agree.
F.
Y. KPEGAH
JUSTICE OF THE SUPREME COURT
LAMPTEY, J.S.C.:
I
agree.
G.
L. LAMPTEY
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Victor Agudetse for Appellant.
Mr. Yiadom Boakye representing Opanin Kwadwo Baah.
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